First US Federal Court Decree

Pennsylvania v. Connecticut 1782

Filed by Pennsylvania on November 3, 1781
Article IX Court convenes in Trenton, NJ on November 12th, 1782
Article IX Court Decree issued on December 30, 1782

In December of 2016, just before our National Collegiate Honors Council  Partners in the Park meeting with Ranger Patricia Jones, we visited Independence Hall carrying an original Pennsylvania vs Connecticut 1782 manuscript. Originally, the manuscript was one of official copies delivered to President Elias Boudinot at Independence Hall on Tuesday, December 31, 1782, which was distributed to the Delegates. After a 233 year absence, this First Federal Court Decision, engrossed in the hand of Articles of Confederation presiding Court Clerk John Neilson made its way back to Independence Hall. Ranger Patricia, in this photograph, is holding the historic decree on the first floor assembly room where Congress enacted the Declaration of Independence and six years later the USCA resolved to convene an Articles of Confederation Federal Court  to meet at Trenton on Tuesday, November 12, 1782 to settle the PA vs CT land dispute.
Articles of Confederation Decree of Federal Court
The first U.S. Federal Court decree, Pennsylvania v. Connecticut, was issued on December 30th, 1782 under the Articles of Confederation.  This Article IX Court decision awarded the disputed lands lying between the 41st parallel north and the 42nd parallel north in northeastern North America to the Commonwealth of Pennsylvania.  The manuscript, pictured below, was written in the hand of Articles of Confederation appointed court clerk John Neilson and records the unanimous decision of the five judges: William Whipple, Welcome Arnold, David Brearley, Cyrus Griffin and William C Houston:

Pennsylvania vs Connecticut 1782 Decree manuscript in the hand of Article IX Court Clerk John Neilson.  - Image courtesy of the Klos Yavneh Collection.

This Cause has been well Argued by the learned Council on both sides.

The Court are now to pronounce their Sentence of Judgement.

We are unanimously of Opinion that the State of Connecticut has no right to the lands in Controversy.

We are also unanimously of Opinion that the Jurisdiction and Preemption of all the Territory lying within the Chester boundary of Pennsylvania and now claimed by the State of Connecticut do of right belong to the State of Pennsylvania.

Trenton 30 Decbr 1782

Wm Whipple
Welcome Arnold
David Brearley
Cyrus Griffin
Wm C Houston

The one page, 7.25" x 9.5", manuscript is written on hand laid paper, which is watermarked "J Bassuet" and docketed on the verso, "Decree of the Court of Const. 30 Decr 1782."  - Image courtesy of the Klos Yavneh Collection.
This United States Article IX Court decision was issued seven years before the current U.S. Constitution's federal judiciary was formed by Congress under Article III in 1789.  The decision pre-date the Supreme Court's 1791 first recorded decision, West v. Barnes, by nine years.  

The five judges that were appointed by the United States in Congress Assembled (USCA) as per Article IX of the the Articles of Confederation, which states:  

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgement and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgement, which shall in like manner be final and decisive, the judgement or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every commissioner, before he sits in judgement, shall take an oath to be administered by one of the judges of the supreme or superior court of the State, where the cause shall be tried, 'well and truly to hear and determine the matter in question, according to the best of his judgement, without favor, affection or hope of reward': provided also, that no State shall be deprived of territory for the benefit of the United States.
NCHC Partners in the Park Student primary source exhibit on the second floor of Independence Hall flanked by the National Collegiate Honor’s Council Partners in the Park Independence Hall Class of 2017. The primary sources exhibited include an original 1781 Journals of Congress open to the Articles of Confederation, Owen Biddle's 1779 resignation as United States Lottery Manager, U.S. National Lottery ticket 3rd Class, Henry Laurens signed Military Commission as President, USCA President Elias Boudinot letter to General Arthur St. Clair regarding the Army mutiny that forced Congress to flee Philadelphia to Princeton, Pennsylvania vs Connecticut 1782 Decree at Trenton manuscript, 1774 Journals of Congress and a 1781 USCA President Thomas McKean letter signed. – For more information visit our National Park and NCHC Partners in the Park Class of 2017 website

Specifically, the 1782 boundary case concerned a Connecticut and Pennsylvania century old border dispute that erupted into the "Pennamite-Yankee War" in 1769, 1774 and once again in 1784 after the Article IX decision.   Under the Articles of Confederation, there were two other boundary dispute cases filed with the United States in Congress Assembled: South Carolina vs. Georgia and Massachusetts vs. New York.   Although the USCA appointed  Article IX judges and established courts to hear these other disputes, the boundaries were settled by the parties without a ruling by the court.  Additionally, there were numerous other boundary disputes  between the States  but they were settled by the parties before the USCA established the required Article IX courts.   The Pennsylvania v. Conneticut 1782 Decree, therefore, remains the only  case decided by a duly appointed Article IX  court, which legally bound two opposing States and their peoples to its federal judicial decision.  

Today, border disputes between the states are addressed in Article III, Section 2 of the U.S. Constitution, which states that the federal court's judicial power specifically extends to "Controversies between two or more States.”  Cases decided by the Supreme Court concerning boundaries include Rhode Island v. Massachusetts (1846), Florida v. Georgia (1855), Alabama v. Georgia (1860), Georgia v. South Carolina (1922), New Mexico v. Texas (1927), Vermont v. New Hampshire (1933), New Jersey v. Delaware (1934), New Hampshire v. Maine (1977).

Consequently, Pennsylvania v. Connecticut (1782) is the first federal court decision and only two other manuscripts are known to exist: 

Pennsylvania vs Connecticut 1782 Decree manuscript in the hand of presiding Federal Court Clerk John Neilson with the original signatures of the five judges: William Whipple, Welcome Arnold, David Brearley, Cyrus Griffin and William C Houston, which is located in the United States National Archives.   

Pennsylvania vs Connecticut 1782 Decree manuscript in an unknown hand located in the  The Trumbull Papers: Connecticut Colonial Official Papers, 1631-1784 (Trumbull, Jonathan.) Main Vault 974.6 fT76


 Claims on the Wyoming Valley in present day Pennsylvania were disputed from the time of the earliest English settlements in the British Northeastern Colonies. The Dutch regarded the Susquehanna River as the border between New Netherland and the English colony of Virginia. King Charles II of England rejected all Dutch claims on North America and, in 1662, granted the land to Connecticut, a full two years before Great Britain’s conquest of New Netherland and its subsequent conversion into the Province of New York.  On March 4th, 1681, Charles the Second granted an extraordinarily generous charter to William Penn making him the world's largest private (non-royal) landowner, with over 45,000 square miles.  Penn became the sole proprietor of an enormous tract of land west of New Jersey and north of Lord Baltimore’s Maryland and gained sovereign rule over the territory with all rights and privileges except the power to declare war.   A large tract  of the Pennsylvania land  had belonged to the Duke of York, who acquiesced ownership  retaining New York and the area around New Castle along with the Eastern portion of the Delmarva Peninsula. The Pennsylvania charter also assigned the Wyoming Valley territory to the colony; thus, overlapping Connecticut’s land claims in their charter.
In the remainder of the seventeenth century, fierce resistance by the Susquehannock  rendered the debate academic, but by the mid-18th century, the double grant became problematic once again.   The conflict escalated when colonies purchased the same land by treaties with the Native Americans. Connecticut sent settlers to the area in 1754.  In 1768, New York, whose colony separated Connecticut and Pennsylvania, sold its interests in the disputed region to Pennsylvania. In February 1769, forty Connecticut settlers arrived and were provided by the Susquehanna Company with land and farming utensils, as long as they defended the valley against the claimants under Pennsylvania. Theses settlers called  "Yankees" were led by Colonel Zebulon Butler, a Connecticut veteran of the French and Indian wars.
The Pennsylvania claimants, however, were ahead of them, having arrived in January.  The Pennsylvania proprietaries, in 1768, had executed a lease of certain lands in Wyoming Valley to Stewart, Ogden and Jennings for seven years, upon condition that they should establish an Indian trading house there and defend the Wyoming Valley from encroachment.  Undeterred by the Pennsylvania settlers presence, the "Yankee" settlers founded the town of Wilkes-Barre in 1769.   Armed bands of Pennsylvanians, known as "Pennamites," tried without success to expel the Yankees in 1769–70.  By 1771, Connecticut's claim reviewed and its royal charter was upheld over Penn Sylvia’s conflicting charter by King George III. In 1773, Connecticut settlers arrived in the Wyoming Valley and erected a new town, which they named Westmoreland.
The Pennsylvanians, however, refused to leave, and, in December 1775, the militia of Northumberland County, Pennsylvania, made an abortive attack on a Connecticut settlement.    This first "Pennamite War" was not particularly bloody with two men from Connecticut being killed and one from Pennsylvania during numerous skirmishes over a period of numerous months.   In January of 1776, Thomas Paine noted in his pro-independence pamphlet Common Sense that such "Continental matters" could only be sensibly regulated by a Continental government and not Great Britain.
In almost every article of defence we abound. Hemp flourishes even to rankness, so that we need not want cordage. Our iron is superior to that of other countries. Our small arms equal to any in the world. Cannon we can cast at pleasure. Saltpetre and gunpowder we are every day producing. Our knowledge is hourly improving. Resolution is our inherent character, and courage hath never yet forsaken us. Wherefore, what is it that we want? Why is it that we hesitate? From Britain we can expect nothing but ruin. If she is once admitted to the government of America again, this Continent will not be worth living in. Jealousies will be always arising; insurrections will be constantly happening; and who will go forth to quell them? Who will venture his life to reduce his own countrymen to a foreign obedience? The difference between Pennsylvania and Connecticut, respecting some unlocated lands, shows the insignificance of a British government, and fully proves, that nothing but Continental authority can regulate Continental matters.
At the end of the American Revolution, conflicts between the two claimants continued and on November 3, 1781, a petition was presented by the State of Pennsylvania to the United States in Congress Assembled, asking that the case be adjudicated by that body. Congress took cognizance of the application under the Articles of Confederation’s Article IX and notice was sent to Connecticut. There was some delay in the procedure, but on August 12, 1782, the Agents for Pennsylvania and Connecticut conferred together and agreed upon William Whipple of New Hampshire; Nathaniel Greene of Rhode Island; David Brearley of New Jersey; William Churchill Houston of New Jersey; Cyrus Griffin and Joseph Jones of Virginia, and John Rutledge of South Carolina, as judges to try the century old land dispute. Later it was learned that General Greene and John Rutledge could not attend, and Thomas Nelson of Virginia and Welcome Arnold of Rhode Island were substituted.
Congress approved of the appointments, and constituted a "Court of Commissioners." After much debate the Commissioners' compensation was set at $10 Spanish Silver dollars per day and expenses.  It was agreed the court should meet at Trenton, New Jersey, on Tuesday, November 12, 1782.
 The Court of Commissioners met at Trenton on November 12, 1782 with only five of the judges reporting to the court:
Welcome Arnold (1745-1798) was a well-known Rhode Island merchant and ship owner during the 18th century frequently advertised his shop in the Providence and Boston newspapers.  In 1772 he was elected a Deputy in the RI Assembly from Smithfield and was also appointed as a Justice of the Peace. In that same year he is reported to be one of the "Sons of Liberty" involved in the notorious Gaspee Affair.  On February 11, 1773 he married Patience Greene (1754-1809) in Warwick, Rhode Island.  In 1778 he was elected representative to the Assembly from Providence and was biennially reelected up until his death in 1798.  In 1778 he actively encouraged the adoption of the Articles of Confederation by Rhode Island and was elected to the Providence Town Auditor in 1779.  He was elected a Deputy Assistant to the Assembly in to represent Providence in 1782, which would be considered a  more modern-day State Representative.  He served as the Speaker of the Rhode Island Assembly five times and was appointed a judge under Article IX of the Articles of Confederation Judge in 1782.  He returned to Rhode Island and in September 1784, he was appointed a trustee of Rhode Island College (later renamed Brown University.  In 1785 he acquired a cargo ship, Rebecca and stepped-up his merchant pursuits.  In 1787 he was appointed by the Providence Town Council as an overseer of the new hospital.  In 1788 was appointed to the Committee to Superintending and Regulating the Market.   He died on September 29, 1798 of unknown causes and is buried at the North Burial Ground in Providence Rhode Island.
David Brearley (1745 – 1790) was admitted to the Bar in 1767; in the Revolutionary War he became prominent as a sturdy patriot. Because of his outspoken opposition to British aggression he was arrested for high treason. This aroused a deep feeling in the community, and a band of sympathizers mobbed the jail and liberated him. He then served as a captain in the Monmouth County militia and eventually rose to the rank of colonel in Nathaniel Heard's New Jersey militia brigade. From 1776 to 1779 he served in the New Jersey Line of the Continental Army, seeing action at Brandywine, Germantown, and Monmouth. Later, he was called from his command as Lieutenant-Colonel in Maxwell's Brigade of the New Jersey line to become New Jersey’s Chief Justice at the age of 34, and held that position when appointed as a member of the 1782 federal court. He was a prominent Mason rising to Grand Master of New Jersey. In 1787 he was elected a delegate to the 1787 Philadelphia Convention and chaired the Committee on Postponed Parts, which played a substantial role in shaping the final document. The committee addressed questions related to the taxes, war making, patents and copyrights, relations with Indian tribes, and adopted Ben Franklin's compromise to require money bills to originate in the house. The biggest issue they addressed was the presidency, and the final compromise was written by Madison with Brearley’s input. The committee adopted the earlier plan for choosing the president by Electoral College, and settled on the method of choosing the president if no candidate had an Electoral College majority, which James Madison and others believed, would be "nineteen times out of twenty". The committee also shorted the president's term from seven years to four years, freed him to seek reelection, and moved impeachment trials from the courts to the Senate. They also created the vice president, whose only role was to succeed the president and preside over the senate. This also transferred important powers from the Senate to the president, who was given the power to make treaties and appoint ambassadors. Brealey signed the U.S. Constitution on behalf of New Jersey.  In 1789 he resigned the Chief Justiceship to accept the appointment of Judge of the District Court of the United States, which position he held until his death, which occurred at the age of forty-five.  He is buried in St. Michael's Episcopal Churchyard ,Trenton, New Jersey.
Cyrus Griffin (1749 -1810) He was educated in Great Britain, studying law at the University of Edinburgh and then at the Temple in London. While in Scotland, Griffin courted and married a Lady Christina, daughter of John Stuart, sixth Earl of Traquair. He returned to Virginia and as a young lawyer gave early adhesion to the patriot cause. Griffin was elected a member of the State house of delegates in 1777, 1778, 1786, and 1787, and was a member of the Virginia legislature.  He was elected President of the United States in Congress Assembled on January 22, 1788, and served in that capacity until the government's demise in 1789.  President's Griffin social status as US President in New York was second to none under the Articles of Confederation.  His office, European education, and marriage to nobility solidified his status as the pinnacle of society among his nation's legal elite and Lady Christina's state parties for foreign dignitaries were legendary.  Griffin, who was the USCA President during the ratification process, was an anti-federalist but once the constitution was ratified it was his Congress that formulated and passed the plan to dissolve the confederation government while implementing the new tripartite system. After the presidency Griffin was appointed president of the Supreme Court of Admiralty from its creation until its abolition and was also appointed a commissioner to the Creek Nation in 1789. Griffin was acknowledged for his service by George Washington with an appointment to United States Court, District of Virginia in 1789.  Judge Griffin’s most notable case was United States v. Burr, which was a federal criminal proceeding, from April to October 1807, against former Vice President Aaron Burr and others, on charges of treason and violations of the Neutrality Act of 1794.  Griffin presided over the case with Chief Justice John Marshall and Burr, despite President Thomas Jefferson's political wrangling, was found not guilty.  Griffin would serve as a federal judge until his death on December 14, 1810. President Griffin is interred with his wife, Lady Christina, in Bruton Churchyard, Williamsburg, Virginia.
William Churchill Houston (1746 – 1788), also from New Jersey, was born in South Carolina in 1746, and came north to attend the College of New Jersey (Princeton University). After his graduation he became Professor of Natural Philosophy, which was position he held for many years. During the Revolution War, he was appointed Captain of the Militia of New Jersey and served until March 25, 1777, when he was appointed Deputy Secretary to the Continental Congress. In 1778 he became a member of the Assembly of New Jersey, and in 1779 a member of the Continental Congress. In 1781 the USCA  elected him Comptroller of the Treasury. In that same year he was also admitted New Jersey Bar and appointed Clerk of the Supreme Court of New Jersey, which office he held until his death. He also held the office of Receiver of Continental Taxes. After resigning his professorship in the College of New Jersey, he became one of the founders and a stockholder of the Trenton Academy. In 1786, Houston was appointed to the Annapolis Convention which was held September 11–14, 1786 at Mann's Tavern in Annapolis, Maryland  In Annapolis  twelve delegates from five states–New Jersey, New York, Pennsylvania, Delaware, and Virginia assembled to debate and develop a consensus about reversing the protectionist trade barriers between the states.  The commission's business quickly turned to discussing the numerous defects in the Articles of Confederation and instead of proposing trade barrier changes the Convention issue a report for their States to "use their endeavors to procure the concurrence of the other States, in the appointment of Commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same."  In February 1787, the USCA called for the Philadelphia Convention and Houston was elected as a New Jersey delegate. He only remained at the convention for a week before his failing health caused him to withdraw.  He died of tuberculosis the following year at the age of 42 and is now buried at the Mount Vernon Cemetery in Philadelphia
William Whipple, Jr. (1731 -1785) was an able seaman, earning the position of Ship's Master by the age of 21. He worked hard and amassed a great deal of money. In 1759 he landed in Portsmouth and, in partnership with his brother, established himself as a very successful merchant. Calls to public duty began almost immediately. He was elected to several local offices and was involved in the Patriot movement. In 1775 he was elected to represent his town at the provincial congress. The following year New Hampshire dissolved the Royal government and reorganized with a House of Representatives and an Executive Council. Whipple was made a Council member, a member of the Committee of Safety, and was promptly elected to the Colonial Continental Congress. He served there through 1779 signing the Declaration of Independence. During this period he took much leave for military affairs and was made Brigadier General of the New Hampshire Militia 1777. General Whipple led men in the successful expedition against General Burgoyne at the battles of Stillwater and Saratoga. After the war Whipple was appointed an Associate Justice of the Superior Court of New Hampshire and an Articles of Confederation Article IX federal judge to settle a century old land dispute between Pennsylvania and Connecticut. He suffered from a heart ailment, and died after fainting from atop his horse while traveling his court circuit in 1785. He was buried in the Old North Burial Ground in Portsmouth, New Hampshire.
On November 12th, 1782, the court was called to order with only two judges present:
Present, the honorable David Brearley, and William Churchill Houston, esqrs. Proclamation for silence being made,  The commission from the United States in Congress assembled, directing the sitting of the court, was read in the words following, The commissioners present took the oath prescribed by the ninth Article of the Confederation, and recited in the commission, before the honorable Isaac Smith, esq. one of the justices of the supreme court of judicature of the State of New Jersey, a certificate of which was endorsed on the commission.  Adjourned till to-morrow morning ten of the clock.
The certificate endorsed on the commission is as follows: I, Isaac Smith, esquire, one of the justices of the supreme court of judicature of the State of New Jersey, do hereby certify, that on the twelfth day of November, in the year of our Lord one thousand seven hundred and eighty two, personally appeared before me the honourable David Brearley and William Churchill Houston, esquires, and were severally sworn well and truly to hear and determine the matter in question between the States of Pensylvania and Connecticut, agreeably to the tenor of the within commission, according to the best of their judgment, without favor, affection, or hope of reward. Dated at Trenton, the day and year above.   Isaac Smith
The court assembled and adjourned for lack of  a quorum of justices the next four days. 
It was on Monday , November 18th "The court met pursuant to adjournment, and opened in form. Present, the honourable William Whipple, Welcome Arnold, David Brearley, William Churchill Houston, and Cyrus Griffin, esquires."  Judges Arnold, Houston and Griffin were sworn in and the court appointed John Neilsen its clerk.  The following day:
 A motion was made by the agents for the State of Connecticut, that the petition preferred by the executive council of the State of Pensylvania to the United States in Congress assembled, praying that a court might be appointed for deciding the controversy subsisting between the said State and the State of Connecticut, or an authentic copy thereof, should be produced and read; which after argument was over-ruled by the court.  A motion in writing was then offered by the agents of the State of Connecticut, in the words following:
At a court of commissioners for the trial of the cause between the States of Connecticut and Pensylvania, relative to the jurisdiction and property in certain lands lying west of Delaware river, within the charter boundaries of said States.  The agents for the State of Connecticut, saving to themselves all advantages of other and further defence in said cause, beg leave to suggest, inform, and give the court to understand that there are many persons who are tenants, in possession of the lands in controversy, holding, improving and claiming large quantities of said land, under titles from the States of Pensylvania and Connecticut respectively, particularly the two large companies of Delaware and Susquehanna, consisting of more than two thousand persons, many of whose people are in, possessing, improving and holding large tracts of said lands in controversy, under title from the State of Connecticut, whose titles under said States respectively win be materially affected by the decision in this case, yet have not been cited or any way legally notified to be present at said trial to defend their titles respectively, which, by the rules of proceeding in a course of justice, ought to be done before any farther proceedings are had in said case; and thereupon said agents move this honorable court to cause said companies of Delaware and Susquehanna, and other tenants in possession, holding under title from either of said states, to be duly cited in some proper and reasonable manner, to appear and defend at said trial, if they see cause, before any farther proceedings are had in said cause; and of this they pray the opinion of this honorable court.
The Court ruled that “the same cannot be admitted according to the construction of the ninth Article of the Confederation, and the tenor and design of the commission under which they act.”   A motion was then made by Pennsylvania:
The agents of Pennsylvania, apprehending that the agents of Connecticut design to move the court to postpone or put off the determination of the cause now depending before them, do give notice to the said agents for Connecticut, in the presence of the court, that they, the said agents of Pennsylvania, will oppose any motions of that nature being made after the evidence on the part of Pennsylvania has been opened, or the merits of the cause entered upon; and if the said agents for Connecticut propose to make any such motion, the agents for Pennsylvania do express their willingness that time be given them for that purpose.
The following day Connecticut motioned:
And now the agents of the State of Connecticut, unwilling to give any unnecessary delay, but considering the magnitude of this cause, its length and intricacy, and the high importance that it should be thoroughly investigated, and not only justly determined, but in a manner satisfactorily to the parties concerned; and the State of Pennsylvania, not having yet filed any declaration or state of their claim in this court, whereby the agents for Connecticut can know what the demands of Pennsylvania are, or what they have to answer to, and knowing that there are many exhibits and proofs which will be essentially necessary in the course of said cause, which we have not, nor hath it been in our power to procure, viz. a certain original deed from the Indians, of a large parcel of the lands in dispute, obtained from their chiefs and sachems at their council fire in Onondaga, in A.D. 1763, which is now in England, left there before the commencement of the present unhappy war, and which we have never since been able to obtain; and other necessary evidence and proofs, which on examination we find we are not at present possessed of, which may be wanted in the course of said trial, and not yet knowing what concessions may be made on the part of Pennsylvania, do consent to proceed in the trial of said cause; at the same time reserving to ourselves the right of moving in any stage of said trial, to have the same postponed, as the nature and exigencies of the case may require, and that the agents for Pennsylvania have on their part the same advantages, and that this motion be made parcel of the files of this honorable court.
Whereupon the agents for the State of Pennsylvania moved as follows:
The agents of Pennsylvania, in answer to the written motion preferred by the agents of Connecticut, do say, that they are now ready, and have been for some time, to exhibit their claim on the part of Pennsylvania, but have been delayed by the expectation founded on the promise made in the presence of the court by the agents of Connecticut, to file their claim at the same time. Yet they say in answer to that part of the said motion which claims the right of moving in any stage of the trial to have the same postponed, that the court ought not to hear and admit any motion to postpone the trial after the same has begun and proceeded to a hearing of the merits of the cause; and of this they pray the opinion of the court.
The court listened to arguments and adjourned until the following day ordering the motions be filed.  The next morning The agents for Pennsylvania stated their argument as thus:
1st. That King Charles the Second, then king of Great Britain, on the 4th day of March, in the year of our Lord one thousand six hundred and eighty-one, by his letters patent, dated on the same day and year aforesaid, did grant to William Penn, the first proprietary and governor of Pennsylvania, his heirs and assigns, "all that tract or part of land in America, with the islands therein contained, as the same is bounded on the east by Delaware river, from twelve miles distance northwards of Newcastle town, unto the three and fortieth degree of northern latitude, if the said river doth extend so far northward; but if the said river shall not extend so far northward, then by the said river so far as it doth extend, and from the head of the said river the eastern bounds are to be determined by a meridian line to be drawn from the head of the said river unto the said forty-third degree; the said land to extend westward five degrees in longitude, to be computed from the said eastern bounds; and the said lands to be bounded on the north by the beginning of the three and fortieth degree of northern latitude, and on the south by a circle drawn at twelve miles distance from Newcastle, northward and westward unto the beginning of the fortieth degree of northern latitude, and then by a straight line westwards to the limits of longitude above-mentioned." By which letters patent the jurisdiction and right of government within the limits aforesaid, and also the right of soil were conveyed, and under which Pennsylvania hath been held, settled and possessed.
2d. That the said William Penn, and the succeeding proprietaries of Pennsylvania, at different periods, purchased from the native Indians their right of soil within different districts of the limits aforesaid, and received deeds from them for the same, and particularly on the twenty-fifth day of October, in the year of our Lord one thousand seven hundred and thirty-six, the said Indians conveyed to Thomas Penn and Richard Penn, the then proprietaries of Pennsylvania, the full and absolute right of preemption of and in all the lands not before sold by them to the said proprietaries within the limits aforesaid.
3d. That the southern bounds of Pennsylvania, so far as the same adjoins on Maryland, have been long since settled; and the same, so far as the State adjoins upon Virginia, have also been settled of late by a line, called Mason and Dixon's line, continued to the end of five degrees of longitude from the river Delaware; that the northern bounds have always been deemed to extend to the end of the forty-second degree, where the figures 42° are marked on the map, the river Delaware being found to extend so far north, and farther; that the said river, pursuing the east or main branch thereof above the forks at Easton, hath ever been deemed to be one boundary of Pennsylvania, from twelve miles above Newcastle, on the said river, to the said end of the forty-second degree, and that a straight line, from thence to the place where the same shall intersect another straight line, drawn from the end of the said southern line of boundary of Pennsylvania, commonly called Mason and Dixon's line, continued to the extent of five degrees of longitude from the river Delaware, is another boundary of the said State of Pennsylvania.
That the late province of Pennsylvania, on the fourth day of July, in the year of our Lord one thousand seven hundred and seventy-six, did join with the other twelve, late provinces, now states, in the Declaration of Independence, and soon after established a constitution and government founded on the authority of the people, which they continue still to exercise and enjoy; and they did also join in the Articles of Confederation of the United States; and that being so independent and sovereign, on the twenty-seventh day of November, in the year of our Lord one thousand seven hundred and seventy-nine, they did by an act of their legislature, consisting of the representatives of the freemen of the said Commonwealth of Pennsylvania in general assembly met, duly made and passed according to the directions of their frame of government, vest the right of soil and estate of the late proprietaries of Pennsylvania in the said Commonwealth; and that by means thereof, and of the several matters and things herein before set forth, the said Commonwealth, or State of Pennsylvania, is entitled to the right of jurisdiction, and right of soil within all the limits aforesaid.
5th. That, nevertheless, sundry persons pretending to claim under the late colony, now State of Connecticut, before the Revolution, have violently settled themselves within the limits aforesaid, and the colony of Connecticut by an act of their legislature, made and passed a short time before the Revolution, have encouraged the said violent settlement and intrusion, and asserted their claim as a colony to a large part of the lands within the limits aforesaid, as well in point of jurisdiction as territory; and that since the Revolution, the said intrusions are continued and daily increased by the said persons pretending to claim under the State of Connecticut, and the claim of the said State is by the said State still continued and persisted in, and the jurisdiction of the said State actually asserted and exercised, within a part of the State of Pennsylvania, in defiance of all law and justice.
Wherefore the said agents do humbly pray, that this honorable court taking into consideration the premises, as well as all other matters and proofs that may be alleged and shewn on the part of Pennsylvania and of Connecticut before you, you will proceed agreeably to the tenor of the ninth Article of the Confederation, to determine and decide in the premises according as to right and justice shall be found to appertain.
The agents for Connecticut responded to the court a state of the case as follows:
The state of the case on the part of Connecticut, exhibited to the honorable court of commissioners at Trenton, November, A. D. 1782.
A. D. 1497. Sebastian Cabot, a subject of England, was employed by Henry the seventh, King of England, to discover a north west passage to China, and in that service, in or about the year one thousand four hundred and ninety-seven, he discovered all the north east coast of America, from Cape Florida, in twenty-five degrees north latitude, to sixty-seven degrees and an half, by which the crown of England became entitled thereto, so far as the right of first discovery could entitle. A. D. 1620, King James the first, in the eighteenth year of his reign, by letters patent, under the great seal of England, gave the name of New England, in America, to all that circuit, continent and limits in America, in breadth, from forty degrees of northerly latitude from the equinoctial line to forty-eight degrees of said northerly latitude, and in length, by all the breadth throughout the main land from sea to sea, with all the rivers, seas, &c. within the same degrees of latitude and longitude; and incorporated the Duke of Lenox, and divers other persons, by the name of the council established at Plymouth, in the county of Devon, for the planting, ruling, ordering and governing of New England, in America; and to them and their successors, grants all the lands, &c. viz. that aforesaid part of America, lying and being in breadth from forty degrees of northerly latitude, from the equinoctial line to forty-eight degrees of the said northerly latitude, inclusively, and in length, of and within all the breadth aforesaid throughout the main lands, from sea to sea, together also with all the firm lands, soils, grounds, &c. and all and singular other commodities, jurisdictions, royalties, privileges, franchises and pre-eminences, both within the said tract, upon the land upon the main, and also within the said islands and seas adjoining: Provided always, that the said islands or any of the premises herein before mentioned, and by these presents intended and meant to be granted, were not actually possessed or inhabited by other Christian prince or state, nor within the bounds, limits or territories of that southern colony heretofore by us granted, to be planted by divers of our loving subjects in the south part. And did further command and authorise the said council and their successors, or the major part of them, to distribute, convey, assign, and set over such particular portions of said lands, tenements and hereditaments, to such subjects, adventures and planters, as they should think proper, respect being had as well to the proportion of the adventurers as to the special hazard, exploit or merit of any person to be recompensed, advanced or rewarded.
March 19, 1628. The said council of Plymouth granted to Sir Henry Roswell, &c. their heirs and assigns, and their associates forever, all that part of New England, in America aforesaid, which lies and extends between a great river, there commonly called Monomack, alias Merrimack, and a certain other river there, called Charles river, being in the bottom of a bay, called Massachusetts, alias Massachusetts, alias Mattatusetts Bay, and all and singular those lands and hereditaments whatsoever, lying within the space of three English relies, on the south part of the said Charles river, or of any or every part thereof, and also all and singular the lands and hereditaments whatsoever, lying and being within the space of three English miles to the southward of the southermost part of the said bay, called Massachusetts, alias Mattachusetts, alias Mattatusetts Bay, and also all those lands and hereditaments whatsoever, which lie and be within the space of three English miles to the northward of the said river, called Monomack, alias Merrimack, or to the northward of any and every part thereof, and all lands and hereditaments whatsoever, lying within the limits aforesaid, north and south, in latitude and in breadth, and in length and longitude of and within all the breadth aforesaid, throughout the main lands there, from the Atlantic and Western sea and ocean on the east part, to the South sea, on the west part, and all the lands and grounds, &c. March 4, 1629, King Charles the first, by his letters patent, under the great seal of England, did grant and confirm unto the said Sir Henry Roswell, &c. their heirs and assigns, and their associates, all the said part of New England, in America, lying and extending between the bounds and limits in the said indenture expressed, &c. Provided always, that if the said lands, islands, or any the premises before mentioned, and by the said letters patent, last mentioned, intended and meant to be granted, were, at the time of the granting of the said former letters patent, dated the third day of November, in the eighteenth year of the reign of his late Majesty, King James the First, actually possessed or inhabited by any other Christian prince or state, or were within the bounds, limits or territories of the said southern colony then before granted by the said king, to be planted by divers of his loving subjects in the south parts of America, that then the said grants should not extend to any such parts or parcels thereof, so formerly inhabited or lying within the bounds of the southern plantation as aforesaid. But as to those parts or parcels so possessed or inhabited by any such Christian prince or state, or being within the boundaries aforesaid, should be utterly void.
March 19, 1631. Robert Earl of Warwick, president of the council of Plymouth, by his deed, bearing date the 19th day of March, Anno Dom. 1631, did give, grant, bargain, sell and confirm unto the right honorable William Viscount Say and Seal, &c. their heirs and assigns, and their associates forever, all that part of New England, in America, which lies and extends itself from a river there called Narraganset, rver, the space of forty leagues upon a straight line, near the seat shore, towards the south-west, west and by south, or west, as the coast lieth towards Virginia, accounting three English miles to the league; and also all and singular the lands and hereditaments whatsoever, lying and being within the lands aforesaid, north and south in latitude and breadth, and in length and longitude, of and within all the breadth aforesaid, throughout the main lands there, from the Western ocean to the South sea, and all lands and grounds, havens, rivers, waters, fishings and hereditaments whatsoever, lying within the said space, and every part and parcel thereof, and also all the islands lying in America aforesaid, in the said seas or either of them, on the western or eastern coasts, or parts of the said tracts of land by these presents mentioned to be given and granted; to have and to hold, unto the said William Viscount Say and Seal, &c. their heirs and assigns, and their associates, to their only proper use and behoof for evermore.
The Associates with Lord Say and Seal, &c. Connecticut people established government, and soon after proceeded to settle on the land aforesaid, upon the right and as associates of the lords Say and Seal, &c. under the patents aforesaid, which lands they were afterwards vested with; having obtained the native right by purchase and conquest, and having settled many towns in the eastern part of said patent, and as far west as the Dutch possessions near Hudson's river, they as early as A.D. 1650, extended their claims and possessions on the west side of Delaware river, and made purchases of large tracts of lands of the Indians there.
In 1635, the said Plymouth company surrendered their patent to the crown.
April 23d, 1662. King Charles the second, by his letters patent under the great seat of England, bearing date the 23 day of April, Anne Dom. 1662, ordained, constituted, and declared John Winthrop, John Mason, Samuel Wyllis, and sixteen others by name, and all such others as then were or thereafter should be admitted and made free of the company and society of the colony of Connecticut, in America, should, from time to time, and for ever thereafter, be one body corporate and politic, in fact and in name, by the name of the governor and company of the English colony of Connecticut, in New England, in America, with certain powers, privileges and authorities; and therein granted to them and their successors, all that part of his dominions in New England, in America, bounden on the east by Narragansett river, commonly called Narragansett bay, where the said river falleth into the sea, and on the north by the line of the Massachusetts plantation, and on the south by the sea, and in longitude, as the line of the Massachusetts colony, running from east to west, that is to say, from the said Narragansett bay on the east, to the South sea on the west, with the islands thereunto adjoining, together with all the firm lands, &c. to have and to hold the same unto the said governor and company, their successors and assigns for ever, upon trust, and to and for the use and benefit of themselves and their associates, freemen of the said colony, their heirs and assigns, to be holden of the king, his heirs and successors, as of his manor of East Greenwich, in free and common soccage, and not in capite or by knights' service.
Whereby the said governor and company became vested with the right of jurisdiction over, and seized of the crown title, and of the exclusive right of pre-emption to all the lands within the boundaries in said patent mentioned and described, excepting only such part of the same as was then actually in the possession of the Dutch: and in fact the lands in controversy, between the states of Pensylvania and Connecticut, in this case, are contained within the said bruits of said patent, viz. within a line drawn from the east side of a creek or river, called Momaroneck, where the fresh water falls into the salt, at high-water mark, west parallel to the south line of the patents to the Massachusetts aforesaid.
March 12, 1664. King Charles the second, by his letters patent, under the great seal of England, bearing date the 12th day of March Anno Dom. 1664, gave and granted unto his royal brother James, Duke of York, all that part of the main land in New England, beginning at a certain place, called and known by the name of Saint Croix, next adjoining to New Scotland, in America, and from thence extending along the sea coast, unto a place called Pennequie or Pennequid, and so up the river thereof to the furthermost head of the same, as it tendeth northward, and extending from thence to the river Kenebequie, and upwards, by the shortest course, to the river called Canada, northward; and also all that island or islands, commonly called by the several name or names of Mattowacks, or Long Island, situate, lying and being towards the west of Cape Cod and the Narragansetts, abutting upon the main land between the two rivers there called and known by the names of Connecticut and Hudson's river; together also with the said river called Hudson's river, and all the land from the west side of Connecticut river to the east side of Delaware bay; and all the several islands, called or known by the names of Martin's Vineyard and Nantucks, otherwise Nantucket, together with all the lands, soils, islands, &c.
The Dutch and Swedes were at that time possessed of the lands belonging to the late colonies of New York and New Jersey, and had made considerable plantations and improvements there; which settlements aforesaid of the Dutch, &c. they contended were begun as early as in the year 1614, prior to the patent of the council of Plymouth.
April, 1664. King Charles the second, in April, 1664, made a conquest of the Dutch at New York; and a settlement of the line between the Duke of York's government, eastward, and the colony of Connecticut, became necessary.
April 26, 1664. His majesty having constituted and appointed Colonel Richard Nichols, Sir Robert Carr, knight, &c. his commissioners to visit the New England colonies, with full power and authority to hear, receive, examine and determine all complaints and appeals, and proceed in all things for providing for and settling the peace of said country; they did accordingly settle and determine as follows, viz.
November 30, 1664. By virtue of his Majesty's commission, we have heard the difference about the bounds of the patent granted to his royal highness the Duke of York, and to his Majesty's colony of Connecticut; and having deliberately considered the reasons alleged by Mr. Allen, senior, Mr. Gold, Mr. Richards and Captain Winthrop, appointed by the assembly held at Hartford, the 13th of October, 1664, to accompany John Winthrop, esq. the governor of his Majesty's colony of Connecticut, to New York, and by Mr. Howell and Captain Young, why the said Long Island should be under the government of Connecticut, which are too long here to be recited. We do declare, and order the southern bounds of his Majesty's colony, is the sea; and that Long Island is to be under the government of his royal highness the Duke of York, as is expressed by plain words in said charters respectively. And also by virtue of his Majesty's commission, and by the consent of both the governors and the gentlemen above named; we do also order and declare, that the creek or river which is called Monoromock, which is reputed to be about twelve miles to the east of West Chester, and a line to be drawn from the east point or side where the fresh water falls into the salt, at high-water mark, north north-west, to the line of the Massachusetts, be the western bounds of the said colony of Connecticut: and all plantations lying westward of that creek and line so drawn, shall be under his royal highness's government; and all the plantations lying eastward of that creek and line, to be under the government of Connecticut.
To this the commissioners therein mentioned from Connecticut, subscribed in the words following, viz. "We underwritten, on behalf of the colony of Connecticut, have assented unto the determination of his Majesty's commissioners, in relation to the bounds and limits of his royal highness the duke's patent, and the patent of Connecticut."
June, 1673. In June, 1673, New York and its territories were recovered by the Dutch, and their government revived again. In 1674, on a treaty of peace between the English and Dutch, signed at Westminster, the English government was restored. June, 29, 1674: June 29, A.D. 1674, the Duke of York obtained a renewal of his patent. The duke's governor being uneasy at the former settlement of the line, claimed a resettlement of the same; and after various negotiations and agreements, between November 23d, 1683, and 1733, the line between the duke's government, and the government of the colony of Connecticut, was finally settled, beginning at Biram river, at the sea, a few miles east of the former settlement of said line, and to extend northward to the line of the Massachusetts, as in said settlement is expressed.
King Charles the second, by his letters patent, bearing date the thirty-first year of his reign, gave and granted unto William Penn, his heirs and assigns, all that tract or parcel of land in America, with all the islands therein contained, as the same is bounded on the east of Delaware river, from twelve miles northward of New Castle town, unto the three and fortieth degree of northern latitude, if the said river doth extend so far northward, but if the said river doth not extend so far northward, then by the said river so far as it doth extend; and from the head of the said river the eastern bounds are to be determined by a meridian line, to be drawn from the head of the said river unto the said three and fortieth degree. The said lands to extend westward five degrees in longitude, to be computed from the said eastern bounds; and the said lands to be bounded on the north by the beginning of the three and fortieth degree of northern latitude, and on the south by a circle drawn at twelve miles distance from New Castle, northwards and westwards, unto the beginning of the fortieth degree of northern latitude, and then by a straight line westward to the limits of longitude above-mentioned: to have, hold, possess and enjoy, unto the said William Penn, his heirs and assigns, &c., the northern part of the bounds and limits of which grant interferes with and spreads over some parts of the western lands before granted to the colony of Connecticut, and confirmed by the renewed charter or patent aforesaid, from King Charles the Second, for about the space of one degree of latitude through the whole breadth of the said grant, being nearly the forty-second degree of north latitude, which occasions the present controversy; of which interference the said William Penn had notice at the time of taking out his patent aforesaid.
The colony of Connecticut, in A.D. 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 Delaware river which lay in a wilderness state, and possessed only by the Indians; certain companies of adventurers, chiefly from said colony, agreed together to purchase the native right to said lands of the Indians, and to extend the settlements of the colony of Connecticut on the western parts of said patent, and accordingly did, under countenance of the authority of said colony, at different times, make sundry purchases of large tracts of lands of the Indians, native proprietors of said lands, on the Susquehanna and Delaware river, within the limits and bounds of the patent to the governor and company aforesaid; and in A.D. 1754, said companies of adventurers proceeded and made settlements on said lands so purchased as aforesaid, and ever since have, though with various interruptions, continued to hold and possess the same under the title of the colony of Connecticut. And the legislature of the colony of Connecticut have approved of the purchases and settlements of the adventurers aforesaid, and have actually erected and exercised jurisdiction in and over said territory, as part and parcel of said colony.
All which rights, powers, privileges and jurisdictions aforesaid, of the colony of Connecticut, on the late happy Revolution, remained as before, vested in the State of Connecticut.
And thereupon the agents for the State of Connecticut pray the judgment of this honorable court in their favour, that they may be quieted in the jurisdiction and property in and over the lands in dispute aforesaid.
The court responded that they "cannot determine what motions may or may not be proper to be made hereafter; at the same time, they think it proper to inform the agents on both sides, that they mean to govern themselves by the principles of law, so far as they ought to apply in the present case" and adjourned to meet the next morning, Saturday November 23, 1782. 
The next morning a motion was made by the agents for the State of Connecticut:
The agents for the State of Connecticut, sensible that in the course of this trial they will have occasion to make use of many depositions, taken before a justice of the peace according to the laws of the State in which they were taken, respecting the purchase of the Indian sachems, native proprietors of said lands, their deeds and the execution of them, the settlements that have been made on said lands and sundry other matters which will be necessary in said trial, beg leave now to move for the opinion of the court, whether such depositions, taken as aforesaid, will be admitted as evidence in the case.
This was followed by a Pennsylvania motion that "The agents for Pennsylvania, in reply to the written motion just filed by the agents for Connecticut, praying the opinion of the court respecting the admissibility of testimony, before the court proceeds upon a hearing of the cause, and before the testimony be regularly offered, humbly beg leave to object to the same motion, as irregular and unprecedented, and such as the court ought not to decide upon, and of this they pray the opinion of the court." 
The court then determined that they can give no opinion upon the admission of testimony until regularly offered and then Pennsylvania, gave the following notice in writing:
The agents for Pennsylvania, anxious for the speedy determination of this cause, and desirous that the agents for Connecticut may have no reason to complain of hardship or surprise, do hereby, in the presence of the court, give notice to the said agents for Connecticut, that they shall conceive it their duty to oppose the admission of any ex parte depositions, as evidence in this cause; and that they shall object to any application for a commission to take the examination of witnesses, and to any motion for delaying this cause on the account of the absence of witnesses, unless such motion or application be forthwith made, so as to avoid unnecessary delay.
The court the adjourned until Monday morning next, ten of the clock and on the reconvening of the court Connecticut responded:
Now the agents for Connecticut, in answer to the notice given them by the agents for Pennsylvania on the 23d instant say, that they being desirous of a just as well as a speedy decision of this cause, and that they, relying on the wisdom, equity and justice of this honorable court, that all questions and motions which shall come before them will be righteously determined, are ready to proceed. And that the agents for Pennsylvania may not suffer any disadvantage by first disclosing them exhibits and evidence, the agents of Connecticut are willing, and now offer to go forward in their exhibits and proofs.
On December 3rd, Connecticut's argument required the "gents of Pennsylvania, in order to remove the doubts which were suggested by the agents of Connecticut, and entertained by some of the members of the court, as to their former powers, produced a new commission of agency" as follows: 
 In the name and by the authority of the freemen of the Commonwealth of Pennsylvania: The president and supreme executive council of the said Commonwealth: To William Bradford, jun. esquire, attorney-general of the said Commonwealth, Joseph Reed, James Wilson, Jonathan Dickinson Sergeant, and Henry Osborne, esquires.
(L. S.) We, reposing especial trust and confidence in your prudence, integrity and abilities, do by John Dickinson. these presents constitute and appoint you, the said William Bradford, jun. Joseph Reed, James Wilson and Jonathan Dickson Sergeant, our counsellors and agents, and you the said Henry Osborne, our solicitor and agent, in the cause now depending before the honorable the commissioners and judges, appointed by virtue of the ninth Article of the Confederation of the United States of America, to hear and finally determine the controversy subsisting between the Commonwealth of Pennsylvania and the State of Connecticut: hereby ratifying and confirming all, and whatsoever you our said counsellors and agents, or any two of you, shall lawfully do or cause to be done, or heretofore have lawfully done or caused to be done, touching the said cause between the said states of Pennsylvania and Connecticut.
On December 4th, with the court accepting the Pennsylvania's new commission, ordered that the proofs and exhibits, on the part of Connecticut, be continued with the following objection lodged by Pennsylvania:
The agents for the State of Connecticut, having offered in evidence the proofs or attestation annexed to a certain deed, signed by Kahick Toton and other Indians, dated 11 July, 1754; which deed had yesterday been admitted to be read; the agents for the State of Pennsylvania objected to the reading of the said proofs and attestation, alleging that they contained sundry circumstances relating to the manner of obtaining the said deed, which were improper to be given in evidence; whereupon, after argument, the court ruled that the same be read.
The following day the proofs and exhibits, on the part of Connecticut, continued and it was followed by additional proofs and exhibits, on the part of Pennsylvania being introduced with James Van Acken, esq., was sworn to give evidence in the cause.  The proofs and exhibits, on the part of Pennsylvania, resumed on December 6th, 7th and 9th.  Also on the 9th   Connecticut, resumed and concluded its "proofs and exhibits."  On December 10th the court ordered:
The proofs and exhibits, on the part of Pennsylvania, and on the part of Connecticut, being finished, Ordered, That the agents proceed in the arguments alternately, and that one conclude on the part of the State of Pennsylvania.
Mr. Root, one of the agents for the State of Connecticut, then proceeded to argue the cause.
On December 11th, Mr. Sergeant proceeded with the argument on the part of the State of Pennsylvania with "he honorable Samuel Wharton and Richard Peters, esquires, were produced as witnesses by the agents for the State of Pennsylvania, and their evidence taken."  The following day Mr. Sergeant continued the argument on the part of the State of Pennsylvania and "His Excellency Governor Livingston was produced as a witness by the agents for the State of Pennsylvania, and his evidence taken."
On December 13th and 14th, Mr. Dyer proceeded with the argument on the part of the State of Connecticut followed by Mr. Wilson for Pennsylvania who continued argument on December 16th, 17th, 18th, 19th, and 20th, On the 21st Mr. Johnson proceeded with the argument on the part of the State of Connecticut and concluded his argument late in the evening on December 23rd.   On the 24th, Mr. Reed Commenced with his argument for Pennsylvania until late in the evening.  The court convened on the 25th and the following day took the deposition of the right honorable William, Earl of Stirling and ordered it to be filed:
The Court met on Friday the 27th, the 28th, and on Monday the 30th pronounced its judgement:
This Cause has been well argued by the Learned Council on both sides.
The Court are now to pronounce their Sentence, or Judgment.
We are unanimously of Opinion that the State of Connecticut has no right to the Lands in controversy.
We are also unanimously of Opinion that the Jurisdiction and Preemption of all the Territory lying within the Charter boundary of Pennsylvania and now claimed by the State of Connecticut do of Right belong to the State of Pennsylvania.
Wm. Whipple
Welcome Arnold
Dav'd Brearly
Cyrus Griffin
Wm. C. Houston
Trenton, 30th Dec'r. 1782.

The decision effectually put an end to the dispute of jurisdiction and possession as to whether Pennsylvania or Connecticut was entitled to the lands that both States claimed. As soon as the decision was known, President John Dickinson of Pennsylvania issued a proclamation forbidding any violence on the part of individuals to gain possession of disputed land claims.
One of the judges of the Court, Griffin, in a letter to President Dickinson said:
This I will undertake to say, that no Court ever met and decided a great question less subject to partiality or corruption, or in which more candor and freedom of debate were exercised … I can assure you, sir, that the commissioners were unanimously of opinion that the private right of soil should not be affected by the decision.
The decision shows conclusively that the Trenton Inter-State Tribunal sat as a Court to award justice upon legal grounds, and not as a board of mediation to effect a reconciliation of the conflicting claims upon the basis of a compromise.  Commenting on this case, Judge Henry Wade Rogers has said:
 The fact that the defeated sovereignty acquiesced, although Congress had no power given it to enforce judgment, is without much significance. A State as small as Connecticut would not be likely to make war upon a State the size of Pennsylvania over such a dispute.
Besides, Connecticut could not have passed her troops across the territory of New York without encroaching upon the neutrality of the latter commonwealth, and so probably involving New York against Connecticut in the contest. Consequently, Connecticut could only have made war upon Pennsylvania after transporting her troops by sea, and the trip from the Connecticut ports to Philadelphia and the other Pennsylvania towns on the Delaware River was far longer and more difficult in 1782 than it is to-day.
In addition, another compelling reason for the acquiescence of Connecticut in the Decree of the Trenton   was the war for independence which was still going on. All of the eleven other States, as well as Pennsylvania and Connecticut, wished to see that contest brought to a speedy and successful close. Therefore, all of those eleven commonwealths had a very real interest in wishing the decision accepted. The common good of all the member States of the Confederation aided the acceptance of the Decree of Trenton from the Article IX Federal Court.
The fact, however, that this case, involving the sovereignty to land claimed by two sovereign and member States of the Confederation which had been for over 100 year a contention between the two emerging States, was peacefully adjusted by the employment of judicial means, was a very great gain for the future of the Confederation. It was not merely that one more cause of future trouble for the United States of America was thus peacefully disposed of, but also it helped to educate the States and their peoples to look to jural rather than to armed means for deciding and disposing of differences between the several members of the Confederated United States of America.
Pennsylvania took a harsh stance on the Article IX Court's ruling stating that the Connecticut settlers ("Yankees") were not citizens of the Commonwealth, could not vote, and were to give up their property claims. Armed troops from Pennsylvania, to enforce the claim, captured and marched the Connecticut settlers out of the region in May 1784.  They garrisoned Fort Dickinson, which was a fort with four small blockhouses, armed with four guns, which was constructed as part of the 1st (1769–1770) and 2nd (1774) Pennamite Wars.  In November of 1784, the Connecticut Settlers returned with a large army, and they managed to seize and destroy Fort Dickinson. Captain John Franklin suggested that a new state, to be named Westmoreland, be established after that victory that would be distinct from both Connecticut and Pennsylvania.
The Commonwealth of Pennsylvania reversed their position on the Connecticut/Yankee settlers in hopes of preventing additional armed strife in their territory. It was decided that pre-Article IX Yankee property claims should be recognized, while Pennsylvania claimants with competing rights would receive recompense in the form of new grants. The suggested settlement, which included splitting up a substantial portion of Northumberland County to form a new county, was accepted by the majority of Connecticut Yankees.
In honor of the Chevalier de la Luzerne, a French minister, the Pennsylvania General Assembly established "Luzerne" as the new County on September 23, 1786.  Although the call for a new Westmoreland was abolished as a result of this settlement, political strife among the locals related to the land dispute persisted until the 19th century.
There were two other federal cases of boundary disputes brought before the USCA, South Carolina vs. Georgia, and Massachusetts vs. New York, under the Articles of Confederation.   Although the USCA appointed Article IX judges and established courts to hear these disputes, the boundaries were settled by the parties without a ruling by the Court.  Additionally, there were several other boundary disputes between two of the States but they were settled by the parties before Article IX judges were appointed by the USCA.   Pennsylvania vs Connecticut 1782 Decree, therefore, remains the only Article IX case decided by a duly USCA appointed court, which bound two opposing States and their peoples to a federal court judicial decision.   

Arguments by James Wilson and William Samuel Johnson before the Court of Commissioners, 14–23 December 1782


James Wilson

We have the pleasure to meet your honors upon a very important Contest. You are now to decide a territorial controversy, which with other nations would have been decided by the sword. This being a court of the first impression in any part of the Globe and the present subject of litigation being of considerable value, I hope the honorable Court will pardon the tedious discussion I am now to make.


On the part of Pennsylvania, I will lay down this first position.


1. “That N. America being discovered by Gabot1 in 1594, the Crown of England assumed the Right of Granting the property and Jurisdiction thereof to its subjects by letters patent.” I apprehend this position is so evident from the General tenor of history that no contradiction will arise concerning it. However, proofs to this purpose may be exhibited in the examination of a second position which I am now to make.


2. “That in 1681 the Crown of England justly considered all the lands in America westward of Delaware River and Northward of lord Baltimore’s Grant, as ungranted lands and open to a new Grant.”  A Right of discovery is common to all nations. The English had not a preference.


·      A Tittle from discovery was certainly of some force and especially according to the Ideas which prevailed in those early times. In consequence of this we find a Grant from the Pope Alexander the 6th. to his Catholic Majesty in the Year 1493.

·      2 Harris voyages. 15. 16. 17.

·      Also a Grant by Henry 7th. of England to the Cabots

·      2 Harris. 190.

·      Also a Grant to Monsr. d’ Ossions

·      4 purchas pilgrim. 1609. 1620.

·      King James the first divided America into two Colonies, South and North Virginia. The first charters could only extend 100 miles upon the coast and the same distance into the Country.

·      1 Neal history. 17. Stiths history of Virginia. 10

·      In 1608 Henry Hudson in the service of Holland penetrated so high up the Hudson’s river as Albany about 43°. N. L.

·      Smiths history N. York. 2. 3. 4.

·      Smith’s history N. Jersey. 19.

·      The dutch settlements in North America were called Nova Belgia or New Netherlands.

·      The extent of them

·      Hielans1 Cosmography 957.

·      2 British Empire in America 237.

·      2 Harris 280. 5 atlas Geog. 732.

·      Ogil. America 168.

·      The Dutch possessions acknowledged as just by England at the Treaty of Breda 1667. and the Treaty of Westminster 1673. From these authorities we have a right to conclude that Nova Belgia or N. Netherlands covered all that Territory at least which is now in dispute.

·      The Great Plymouth patent constituting N. England from 40°. to 48°. N. L. passed in 1620.

·      This patent we contend could pass no Territory westward of N. Netherlands. It was bounded or estopped by the possessions of the first Christian prince.

·      1 Douglas history N. England 114.

·      2 Douglas 391.

·      Lord Hardwick’s opinion in 1 Vezey 451.

·      The Geography of the Country on this period but little understood and therefore unreasonable and extravagant that Grants should extend to the south seas.

·      3 Purchas 852. 853.

·      4 Purchas 1786. Virginia valued—pamphlet

·      The surrender of this Great patent was in the year 1635.

·      The Charter to Connecticut was Given in the Year 1662.

·      New Haven colony united with the Colony of Connecticut 1665.

·      That charter meant only to cover the two Colonies and could never mean to extend westward of the Dutch settlements. All Geographers and writers have proceeded upon this Idea.

·      Douglas, Hutchinson, Neal, modern un. history, British Emp. &c. &c.

·      The Title set up by Connecticut ought to be considered as a dormant title. Nothing is mentioned of this western Territory from the year 1662 to the year 1754 and not regarded by Government until 1773.

·      The line drawn by the King’s commissioners in 1664 and assented to by Connecticut as a good issue, decisive as to the western bounds of that Colony.

·      New York Records. 20.

·      Connecticut Records. 30.

·      In 1680 and 1730 Connecticut acknowledges herself bounded west by the province of N. York.

·      Considerations ought to be commensurate with every Grant. The King was deceived in this Grant to Connecticut as no exception was made to the Dutch possessions.  We must discover the thoughts of those who make Contracts

·      2 Blacstone 295.

·      2 Vattel §270.

·      2 Hutchinson history Massa. 387.

·      Interpretation must be rational

·      2 Rutherford—chapter Interpretation.

·      1 Blacstone 59.

·      2 Bacon abrid. 661.

·      The power of explaining charters, &c. must remain with the Crown.

·      2 Vattel §282. 287.

·      Puffendorf 541.

·      Grotius 365.

·      Restraining the words of laws, patents &c.

·      2 Vattel 292. 293.

·      2 Rutherford. 339.

·      Puffen. 545. 554.


3. I state as a 3d. position “That King Charles the second granted to William Penn his heirs and assigns all that Tract of land in America bounded by Delaware River on the East unto the 43°. of N. latitude, the said land to extend westward five degrees in longitude &c.”

·      This position is proved by the charter of Pennsylvania dated 4 March 1681.


4. A fourth position is “That this charter was considered by the King with attention and caution and was granted in consideration of debts due from the Crown, and also in consideration of the services of Sir William Penn the father of the Grantee.”

·      Passed with great caution. Proceedings of the privy council in

·      1 Votes assembly 7. 12.

·      The Grant not extravagant.

·      2 Douglas 306.

·      The Grant was for debts and services

·      2 Harris. 293.

·      9 Biographical dict. article Penn.

·      Such Grants of the King ought to be construed favorably

·      4 Bac. ab. 212.


5. A fifth position “That, to prevent any claim which the duke of York might have upon Pennsylvania, William Penn obtained a release from the duke of all such his right, title, and Interest.”

·      This deed of release bears date 21 of August 1682.

·      2 Douglas 305.

·      This right, title, or Interest, vested in the duke.

·      The Dutch had the right of pre-emption as possessing N. Netherlands. N. Netherlands was cede[d] to England and afterwards granted to the duke.

·      Colden’s history five nations 52. 53. 54. 104.

·      This makes the foundation of the cession made by the state of N. York to the united states.


6. We state as a sixth position - “That upon the faith of this Grant to Penn Great numbers came from Europe to Pennsylvania, extended the settlements already began, and together with the Proprietor exercised Jurisdiction over all the lands within the bounds of the said patent until the revolution in 1776.”

·      Many laws of Pennsylvania, the Council Books of Pennsylvania, and Colden’s history, page 115. 131. were adduced in proof of this position.

·      Also a proclamation of the Pennsylvania Government dated 24th. of February 1768. and another dated 10 July 1771.


7. A seventh position is this “That Penn not content with the Title which the patent gave him to the soil, he and his successors purchased the lands from the Natives for a valuable consideration.”

·      The Indian Right to dispose of their lands. Colden. 106.

·      Also in page 77. 78. 79.

·      Dummer’s defence. 18. 1 Douglas. 5.

·      Indian deeds and papers exhibited from No. 2 to No. 41.

·      Treaty of Albany 1754.

·      Pennsylvania does not mean to abandon her Crown title by these exhibits. But she means to strengthen her right to the lands in controversy by combining her Indian title.


8. We advance as the eighth position - “That the Indians of the six Nations in a public and solemn manner conveyed the Right of pre-emption to the proprietors, and covenanted to sell all the lands within the limits of the charter of Pennsylvania to none but to them, their heirs and assigns.”

·      This deed of pre-emption dated 25th of October 1736.

·      Colden history five nations.


Position 9. - 9. “That at a subsequent period a second deed of the same kind was made in the same manner and the former deed recognised.”

·      Deeds of ratification and confirmation in the years 1754. 1758.

·      Also the great deed at Fort Stanwix in the year 1768.


Position 10. -  “That actual settlements were made by the Inhabitants of Pennsylvania and under rights derived from the proprietors, on the lands in dispute, for more than 20 years, before any claims or settlements on these lands were made by any persons under Connecticut.”

·      To prove this position several exhibits were adduced from letter A to letter G. and also parole testimony.


Position the last. 11. “That by an act of the General assembly, Pennsylvania being a free, sovereign, and Independent state, all the Estate, title, and Interest, of the then proprietors is vested in the Common wealth of Pennsylvania, in consideration whereof the sum of £130,000 sterling money is granted to the said proprietors.”

·      The act in proof of this position is dated 27th. of November in the year 1779.

·      Not just to extend these south sea claims—these unlocated lands ought to be in common as being acquired by the common blood and common Treasury of America.


William Samuel Johnson on the part of Connecticut -- I shall state this as my first position.

1. “That by the discovery of the Cabots the Crown of England was vested with a right of colonizing from the 25 to the 68°. of N.1. in America, and with the right, property, and pre-emption, to all the lands from sea to sea.”

·      Prince’s chronology. 17. 80.

·      Stiths history of Virginia Appendix 1. 2. 3.

·      General history and writers upon this subject.


2. A second position I lay down is “That 1606 King James the first divided the Countries aforesaid into two Colonies South and North Virginia.”

·      Stiths history of Virginia

·      Douglas—Hutchinson

·      and Prince.


3. My third position - “That King James the first granted to the Council of Plymouth all the Colony of North Virginia from the 40 to the 48° of N.l. in longitude from the Atlantic on the East to the south sea on the west the whole breadth throughout the main land, and gave it the name of N. England, except only such parts as were actually in the possession of some other Christian prince.”

·      Plymouth patent dated 18th. November 1620.


4. My fourth position - “That many subordinate Grants were made by the Council of Plymouth, particularly one to the proprietors of the province of Massachusetts Bay, confirmed by King Charles the first in 1629.”

·      Charter prefixed to the laws of Massachusetts.

·      3 Hutchinson, from the beginning.


5. Position. - “That Robert Earl of Warwick president of the Council of Plymouth conveyed to lord Say and Seal and others all that part of N. England in America from Narraganset river the space of 40 leagues upon the sea shore, and also all the lands north and south in latitude and breadth, and in length and longitude of and within all the breadth aforesaid, throught the main lands there, from the western ocean to the South Sea.” Patent to Say and Seal dated 19 March 1631.

·      2 Douglas 90. 160.

·      2 Hutchinson. 203.

·      Connecticut records. 57.


6. Position. - “That in 1636 the Colony of Connecticut settled on the said lands as the associates of Lord Say and Seal &c. and in 1638 formed a constitution of Government extending themselves by purchases from the Indians to the possessions of the Dutch on Hudson’s River.”

·      Connecticut records. 41.

·      New-Haven records. 1. 2. 3.

·      United Colony records. 19. 20. 39.


7. Position. - “That King Charles the 2d. granted the present charter to the Governor and Company of Connecticut. The bounds are All that part of my dominions in New-England bounded East on Narraganset river, on the North by the line of the Massachusetts, and on the south by the sea; and in longitude as the line of the Massachusetts running from East to West, that is from the said Narraganset on the East to the south sea on the west part.” Petition of the Connecticut assembly to

·      Charles 2d. June 7th. 1661.

·      Charter 23 of April 1662.

·      Letter from Charles 2d. to the Governor and Company of Connecticut 23 of April 1664.


8. Position. - “That Charles 2d. gave a patent to his Brother the Duke of York of all that part of New-England from Saint Croise next adjoining to New Scotland, from thence on the sea coast to Pemaquid and up that river to its head as it tendeth northward, and extending from thence to the river Kenebeck and upwards by the shortest course to the river Canada Northward, also Long Island with the Hudsons river, and all the lands from the west side of Connecticut river to the East side of Delaware Bay.”

·      This patent, dated 12th. of March 1664.


9. Position - “That the Crown of England having granted all the lands from 40°. to 48 N.l. to the Plymouth Company, excepting as is therein excepted, the duke of York’s patent took effect by force of the exception and in the settlement of the line with Connecticut the duke’s patent was reduced nearly to the Dutch possessions on the Hudson’s River Eastward.”

·      Connecticut records. 137.

·      Articles of agreement 29th. of April 1725.

·      Act of the Connecticut assembly October 4th. 1730.


10. Position. - “That in 1753 the Colony of Connecticut having settled all the lands in the patent east of the line settled with the duke of York—Companies of Adventurers were formed for the purpose of making settlements within the charter on the west of delaware river agreeable to the original Intent thereof and purchased of the Indians sundry Tracts of land on the Delaware and Susqueh. rivers, and made settlements on the lands in controversy, under the colony of Connecticut, approved by the assembly.”

·      Indian deed 11 July 1754.

·      Indian deed 29th of October 1756.

·      Indian recognition. 12th July 1763.


11. Position. - “That in 1773 the Colony of Connecticut did assert their right of Jurisdiction and property and pre-emption in and to the lands in question, and for many years past have actually exercised Jurisdiction over the same.”

·      Act of assembly October 1773.

·      Act of assembly January 1774.

·      Act of assembly December 1775.


12. Position—and the last - “That the Colony of Connecticut at the time of the late Revolution was in fact seised of the right of Jurisdiction of property and preemption in and to all the Territory in their charter and patent including the lands in controversy.”

·      This question upon the whole matter is a very important question and to my Judgment ought to be determined by the law which existed at the moment of acquisition.

·      This law had for its basis the great principle or title of occupancy and the acknowleged Right of the Prince.

·      But America was inhabited. Therefore some additional principles were necessary and what were these additional principles? Preemption, and actual purchase.

·      But no such purchases could be made unless they were made under the authority of the Prince, agreeable to the feudal Ideas prevalent at that period.

·      Hence it followed that the Indian Tittle was subordinate to the Crown Title.

·      The Indian Title can give no certainty and certainty is necessary in the establishment of property.

·      We ought to consider the Natives of America as they were.

·      Cultivation or Industry appears to me the only just criterion of property.

·      Nay property ought to be commensurate with Civilization.

·      We made actual purchases of the Indians but why? That we might purchase peace and quiet.

·      All titles in America take their origin from the Crown in the way of Charters and other Grants.

·      The Crown only could give a right of pre-emption, and that right of pre-emption seems to be admitted by the laws of Nations, consented to by all civilized people and sanctified by prescription.

·      All the legislatures upon this continent have adopted a language of this sort and therefore ought to be binding upon this court as a fixed determination or law in the American code.

·      Connecticut had a charter given them in the year 1662 upon valuable considerations.

·      Charters or Grants are the foundation of all American property and charters or Grants once fairly made should operate eternally.

·      Connecticut has a legal Title as founded upon discovery and subsequent Grant from Charles the second.

·      Discovery is a right acquiesced in nay ratified by all the nations of Europe and therefore in a national controversy like the present will carry weight with it.

·      We have no direct proof that the Dutch were in possession of N. Netherlands or any part of N. England under a title from their sovereign, untill the year 1621, a year after the Plymouth patent was granted by King James.

·      Before the year 1620 Governor Argal of Virginia made the Dutch acknowlege the King of England and therefore became Tenants to the Crown of England.

·      We can consider the Dutch therefore as originally nothing better than Intruders.

·      Then the settlements of the Dutch cannot form a bar or an estoppel to the western extension of the Connecticut charter.

·      It does not appear that King Charles was deceived in his Grant to Connecticut. He well knew the extent of that Grant. The Atlantic and Pacific oceans even upon the coasts of them had been explored—latitudes and longitudes pretty accurately determined.

·      All these Grants or charters extending to the South Sea were done so for the purpose of encouragement. They formed a regular system.

·      At all events, the Instrument itself must determine the Grant.

·      Every Instrument of this nature should be construed liberally and not so strictly as to contradict or take away the essential words of it. If the property of these lands in dispute were once vested, as we think by the charter of Charles, there is nothing in our opinion to divest it.

·      The reasons, evidence, or documents to the divestiture of property ought to be fully as strong as to the Investiture.

·      The settlement of 1664 was only a settlement with the duke of York. In fair construction it can relate to nothing farther than to adjust the bounds of the Dukes patent and the patent of Connecticut as relative to the Duke.

·      If that settlement meant any thing more than I contend it could be only upon the principle of resumption by the Crown—the most horrid principle of Tyrannical power—against all Law whatever, and what I am certain this Court will never establish in these enlightened times.

·      In this case the Title of Connecticut cannot be considered as a dormant title. Silence does not operate against property in the society of nations. Neither in law or Equity can nonuses forfeit the right in our situation. Neither Penn or Connecticut made any use of this controverted Territory until lately. Connecticut took possession and made settlements so soon as her Eastern Territory was populated.

·      The acknowlegement of Connecticut as bounded west in 1680 and 1730 must be construed according to the subject matter. The subject matter was the bounds of the Province of N. York and the bounds of Connecticut as interfering with that province and can-not preclude the western extension of Connecticut beyond the province of N. York.

·      Besides if there was a dereliction or even such an acknowledgement on the part of Connecticut it cannot operate in favor of the Pennsylvania charter, that being granted to Penn only 19 years after the one to Connecticut.

·      The policy of this great Question has been mentioned. I think improperly. It was meant as an appeal to a majority of this honorable Court who come from the smaller states in the union. But your honors will disregard the policy of this matter if it militates with the right.

·      However, the policy will be found in favor of Connecticut—for at the approaching peace with G. Britain our charters will be the best foundation to stand upon in discussing the subject of the back Territory. We are not entitled to those fine and extensive regions by Conquest from Britain nor are we entitled to them by forfeiture on the part of Britain. Our charters or Grants from the Kings of England make the only firm basis of American claim to those back lands.


MS (DLC: TJ Papers); entirely in the hand of Cyrus Griffin. There is no date on the MS, but Wilson’s arguments were presented on 14, 19 and 20 Dec. 1782 and those of Johnson on 21 and 23 Dec. 1782 (JCC, xxiv, 29–30). As suggested in the editorial note, Griffin may have placed this MS in TJ’s hand in Philadelphia in Jan. 1783.


the policy of this great question has been mentioned: Johnson is here replying—and with telling force—to an argument that apparently had been advanced by Wilson on 13 Dec. 1782 in which he undertook to “suggest the Advantages or inconv[eniencie]s that are likely to flow from the Decision of this Court” (Penna. Archives, 2d ser., xviii, 622). He may also be referring to the argument that Wilson and other land speculators had advanced in Congress and he repeated here—that “these unlocated lands ought to be in common as being acquired by the common blood and common Treasury of America” (“The Creation of the National Domain,” by Merrill Jensen, MVHR, xxvi [1939], 323–42). But there is no doubt of the accuracy of Johnson’s observations that at the approaching peace negotiations the sea-to-sea charter claims of the colonies would be one of the main supports of the American contention, and instructions had already been given to that end to the American ministers abroad (JCC, xxiii, 490–516). Nevertheless, policy was doubtless the determining influence in the decision. 

1. Thus in MS. This and other similar errors in MS would seem to indicate that Griffin took down his notes from oral presentation by counsel.  

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.