IV. First Report on Petition of Zebulon Butler
[21 Jan. 1784]
The Committee to whom were referred the resolutions of the General assembly of Connecticut and the letter and proclamation of Govr. Trumbul desiring a revision of the sentence of the judges formerly appointed to hear and finally determine the controversy between that state and the state of Pennsylvania concerning the boundaries and jurisdiction of the said states on the Western side of the Delaware; also that a court may be instituted for determining the private right of soil within the said territory; and notifying that the said state of Connecticut claims jurisdiction over all the lands between Pennsylvania and the Missisipi from 41°. to 42°-2″ Northern latitude; and the petition of Zebulon Butler and others, inhabitants within the territory late in dispute between the said states complaining that they are disturbed in their private right of soil and praying in like manner the institution of a court for determining the same, have agreed to the following report.1
It appears to your Committee that the controversy between the states of Pennsylva and Connecticut for territory on the Western side of Delaware river alledged to be within both their boundaries was originated in Congress so early as the 5th. day of Octob. 1775, and was frequently and much agitated therein from that time to the 3d. day of Nov. 1781.
That the state of Pennsva did then petition Congress that the same might be determined according to the 9th. Article of Confederation.
That Congress did on the 14th. day of the same month direct a notification to the state of Connecticut of the petition from Pennsylvania, and assign a day for proceeding thereon.
That the same was regularly proceeded on according to the 9th. Article of the Confederation, and that the judges met at Trenton on the 12th. day of Nov. 1782 to hear and determine the same.
That a fair, full, and patient hearing of the parties by their agents, was given, and mature consideration had by the said court from the said 12th. day of Nov. day by day without intermission till the 30th. day of Dec. when final sentence was pronounced: that this sentence was with the unanimous concurrence of the said judges.
That no improper biass or conduct in the judges or any of them is suggested or supposed.
That the said 9th. Article of the Confederation declares that the sentence of such a court shall be final and conclusive.
Resolved therefore that the said sentence ought not to be revised.2
Resolved that a court should be instituted according to the said 9th. Article of the Confederation for determining the private right of soil so far as the same is by the said article submitted3 to the determination of such a court.
MS (DLC: TJ Papers, 10: 1627); entirely in TJ’s hand; endorsed by Thomson: “Report of Mr Jefferson Mr Lee Mr Williamson. Jany 21. 1784. Entd. Read.” Dft of all except the opening two or three lines (i.e., all that precedes the words “concerning the boundaries and jurisdiction of the said states”) is in DLC: TJ Papers, 11: 1892. Dft is omitted altogether by Ford, description begins Paul Leicester Ford, ed.,The Writings of Thomas Jefferson,“Letterpress Edition,” N.Y., 1892–1899 description ends iii, 382–7, and is not to be confused with his so-called “rough draft.” Important differences between Dft and MS of report are indicated in notes below.
1. This introductory paragraph is given here as it was written in Dft before the petition of Zebulon Butler was referred to the committee, for the concluding words originally read: “… from 41°. to 42°-2″ Northern latitude have agreed to the following resolutions.” Then, when the petition of Butler was committed on 16 Jan., TJ struck out the last six words at the end of the opening paragraph of Dft and interlined the following: “and the petition of Zebulon Butler and others inhabitants within the territory late in dispute between the said states praying in like manner the institution of a court for determining their private right of soil, have agreed to the following resolutions.” Thus amended, this paragraph was copied in MS. However, this still placed the emphasis upon Connecticut’s request for a revision of the decree of the Court of Commissioners, with both Connecticut and the Wyoming inhabitants asking also for a court to try the private right of soil. When John Montgomery of Pennsylvania arrived in Congress on 22 Jan., he opposed the resolutions reported by TJ until the Connecticut delegates “moved for exsepunging that part of the report which referred to the exceptionable part of the letter [from Trumbull] and only insisted on the right of the petitioners, as that right was founded on the Articles of Confederation” (Burnett, Letters of Members description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress description ends , vii, No. 535). This change was made and the opening paragraph was altered in MS to read as it does in the second report (Document v) before the adoption of the amendment indicated in note 3 to that report. It is significant that this change was made not by Thomson but by TJ; this may suggest that it was the result of a consultation among TJ, Sherman, and Montgomery rather than (as Montgomery remembered six weeks later) a formal motion in Congress. If this conjecture is right, then the report was recommitted in order that TJ might enlarge it by inserting the date fixed for the appointment of the court and by drafting the form of the notice to the parties concerned, not in order to remove the part to which Montgomery objected; but see note 2 below.
Thomson’s entry in Committee Book, PCC: No. 186, under 16 Jan. 1784 reads: “Petition of Zebulon Butler and others praying a court to be established for deciding the title to the lands on which they are settled between them and claimants under the state of Pensylvania.” The reference of the letter of Trumbull and resolutions of Connecticut to a committee composed of the same persons (TJ, Lee, Williamson) was made on 13 Jan. (same), but Committee Book, PCC: No. 191 under date of 21 Jan. shows only that a report was handed in “On the pet. Zebulon Butler and others for a court to try the right of property,” &c., a fact which further supports the hypothesis that TJ made the alteration noted above before the report was submitted to Congress.
The last word in this opening paragraph was changed from “report” to “resolutions” either before or after being submitted.
2. This and the preceding seven paragraphs were evidently deleted by amendment in Congress, though MS shows a line drawn through the last three only. Article IX provided that a court to try the private right of soil could be granted to those claiming under different grants of two or more states, whose jurisdictions vis-à-vis the lands covered by such grants had been previously “adjusted”; hence, as TJ must have realized and as Montgomery specifically pointed out, the establishment of a court to try the private right of soil was the equivalent of a confirmation of the decree of the Court of Commissioners and therefore no such formal repudiation of the insinuations in the Connecticut resolutions was needed. But the deletion of these paragraphs and the recommitment of the report were obviously not the result of this legal technicality; they were necessary to gain the support of the Pennsylvania delegates, particularly John Montgomery, and they were probably necessary to accommodate various interests respecting western claims of the states. It is significant that, as finally adopted, the second report was completely silent on that part of Connecticut’s resolutions concerning the Court of Commissioners of 1782 but left in suspense the question of Connecticut’s assertion of a claim to lands westward of Pennsylvania. It is difficult to believe that this was not the result of some adjustment of views to which TJ was a party. For in his Dft of this report the part repudiating the Connecticut insinuations was even more vigorous than in the report as submitted. It read in part: “… till the 12th day of Nov. 1782 when the said court met, nothing like a surprize on either party can be supposed: that on a fair, full, and patient hearing of <all> the evidence and arguments of both parties and mature consideration of the said court from the said 12th. day of Nov. day by day without any omission to the 30th day of Dec. 1782 during the whole of which no improper biass or conduct in the judges or any of them is suggested, those judges were unanimous in their sentence: that <they were appointed regularly and agreeable to the said 9th Article of Confederation for which> the said 9th Article of Confederation declares that the sentence of such judges shall be final and conclusive, and that it is for the quiet of these states that such determinations should be final and conclusive. The sentence of the said judges ought not to be revised or disturbed.”
3. Dft reads “subjected.”