The Connecticut-Pennsylvania Territorial Dispute
The far-reaching dispute between Connecticut and Pennsylvania over their conflicting charter claims was one that Jefferson became acquainted with on first entering Congress in 1775 (see Vol. 1: 248). The reports that he drew up eight years later came at a climactic moment of the controversy. These reports and related documents printed in the present group require particular comment for several reasons. First, it was believed by responsible individuals at the time and by reputable historians since that, to put it in soft terms, an accommodation of interests was effected in Congress whereby Connecticut’s acquiescence in the adverse outcome of the litigation was purchased at the cost to the national domain of a rich and valuable stretch of territory later known as the Western Reserve. Second, though never precisely designated as to time, place, and persons involved, this “deal” is generally regarded as having been managed if not conceived by Roger Sherman of Connecticut and as having included the members of the Court of Commissioners of 1782 who were arbitrators of the controversy. Third, the texts of the reports drawn up by Jefferson in January 1784 may throw some light upon this traditional belief. This has not been possible hitherto because Ford, iii, 382–7, printed both reports as if they were rough draft and fair copy of the same document, an error compounded by his inclusion in the former, as if it were an integral part of it, of a true rough draft of part of the latter and by the omission altogether of another revealing (though incomplete) rough draft on its verso. This unfortunate confusion of the texts was accepted without question by Burnett, Letters of Members, vii, No. 493, note 2, thus helping to perpetuate the veil of obscurity thrown over the nature of two of Jefferson’s separate and quite different reports.
Quite aside from these factors, attention needs to be called to the case of Pennsylvania v. Connecticut because it was the only litigation between two states carried out under the terms stipulated in Article IX of the Articles of Confederation and because its importance as a landmark in our constitutional development has been neglected and thrown into undeserved shadow by the allegations of collusion. At the conclusion of the trial, President John Dickinson of Pennsylvania declared the outcome to be a test of the strength of the union, reflecting honor upon the Confederation and giving proof of its political energy. Robert R. Livingston, perhaps a more disinterested observer, wrote to Lafayette on 10 Jan. 1783: “The great cause between Connecticut and Pennsylvania has been decided. … It is a singular event. There are few instances of independent states submitting their cause to a court of justice. The day will come, when all disputes in the great republic of Europe will be tried in the same way, and America be quoted to exemplify the wisdom of the measure” (texts in Wyoming Historical and Geological Society in collection cited below).
Even this important trial between two states, however, was but one episode in a half-century course of events that began about 1750 and in consequence of which British imperial relations were endangered, the management of Indian affairs complicated, the people of two colonies brought several times into armed conflict on a sizable scale, the formation of the American union placed in jeopardy, and post-Revolutionary animosities engendered in such a way as to threaten one of the strongest bonds of union—the national domain—and to endanger it from the separate interests of individual states and of groups controlling the great land-speculating companies. The documentation of the whole is immense. Much of value has been published in the Pennsylvania Colonial Records and the Pennsylvania Archives, especially Volume xviii of the second series; four volumes of records covering the first twenty years of the subject have been printed in The Susquehannah Company Papers, ed. Julian P. Boyd (Wilkes-Barré, Penna., 1930–1933); and some 20,000 manuscripts, photostats, and transcripts of all discoverable documents in archives and libraries in America and abroad relating to all aspects of the history of this Connecticut westering movement and of its many ramifying controversies are in the Wyoming Historical and Geological Society awaiting publication or study; a brief account of the whole subject is to be found in “Connecticut’s Experiment in Expansion: The Susquehannah Company, 17531803,” Jour. of Economic and Business Hist., iv (1931), p. 38–69. Only the briefest outline of the subject can be given here by way of background for Jefferson’s reports.
The Connecticut expansion into Pennsylvania began about 1750 with the organization of various land companies, of which the Susque-hannah Company soon became the leader and absorbed or dominated all others. It was not until 1771 that Connecticut, after allowing her charter claim to lie dormant for more than a century during which she acquiesced or explicitly sanctioned the New York-Connecticut line as her western boundary, gave formal support to the claim to lands west of New York. Governor Jonathan Trumbull, who was a proprietor in the Susquehannah Company and who in 1773 was granted 500 acres as “the one particular Gentleman in this Colony … that has done Sundry Services for this Company,” identified his political fortunes with this issue; and, though there was an armed expedition from Pennsylvania against the Connecticut inhabitants at Wyoming in 1775 under the guise of a posse comitatus, the controversy was more or less suspended during the Revolution. Connecticut law ran in the region, the voters were represented in the Connecticut legislature, and militia and troops for the Connecticut line were recruited there.
Soon after the ratification of the Articles of Confederation in 1781, the Pennsylvania claimants to lands in the same area petitioned Congress to appoint commissioners to arbitrate the dispute according to the provisions of Article IX. Congress acquiesced, and Pennsylvania appointed William Bradford, Jr., Joseph Reed, James Wilson, and Jonathan Dickinson Sergeant as counselors and agents, with Henry Osborne as solicitor; Connecticut designated Eliphalet Dyer, William Samuel Johnson, and Jesse Root to represent her interests (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxii, 345–7). The legal counsel were not only distinguished, but included on both sides men who were political figures and land speculators. James Wilson was closely identified with Robert Morris, Tench Coxe, Samuel Hodgdon, and other Philadelphia operators in land holdings in the Wyoming region, was president of the Illinois-Wabash Company, and was a member of Congress who actively advocated the theory that the inherent powers of the federal government authorized the taking over as a national domain the northwest territory claimed by Virginia (Merrill Jensen, “The Creation of the National Domain, 1781–1784,” MVHR description begins Mississippi Valley Historical Review, 1914–64 description ends , xxvi , 323–42). Dyer was a member of Congress and had been identified with the Susquehannah Company for three decades, arguing its cause in Connecticut and London; Johnson was not a member of the Company, though he had represented it in London before the Revolution, and in 1773–1774 he had vigorously and unsuccessfully opposed Connecticut’s yielding to pressure by Dyer, Trumbull, and other members of the Company to induce the colony to take up the western claim officially. Root was also a member of Congress and was interested in the Company. Though some of the counsel on both sides were interested parties, they included in Wilson and Johnson two of the best legal minds in America.
The opposing agents met before Congress in June 1782 to undergo the arduous and complicated process of agreeing upon the members of the Court of Commissioners. It was at once moved by the Massachusetts delegates that in all disputes between two or more states the delegates ought not to sit as judges in any question to be decided; only Connecticut voted with Massachusetts in support of this motion, nine other states opposing it. The Connecticut delegates then produced an instruction from the legislature of their state requiring them to move the postponement of the appointment of commissioners “because … sundry papers of importance in the case are in the hands of counsel in England, and cannot be procured during the war: nor is it convenient for the states to divert their attention from the great objects of the war to attend to private controversies.” But the Connecticut delegates’ motion itself was postponed by a vote of ten states to one, only Dyer and Huntington of Connecticut voting in the negative. Root and Dyer as the Connecticut agents then challenged the credentials of the Pennsylvania agents and of the power of the executive council of Pennsylvania to grant them; Root and Dyer as the Connecticut delegates in Congress voted consistently but unsuccessfully to give effect to this and other delaying tactics they had employed as agents. On the crucial vote declaring the Pennsylvania agents’ powers adequate, Root and Dyer were the only members to vote nay.
At last, after three weeks had been spent in such maneuvers by the Connecticut agent-delegates, Congress was able on 16 July to direct the counsel of both states to proceed to the appointment by joint consent of the “commissioners or judges to constitute a court for hearing and determining the matter in question” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxii, 351–2, 354, 355–6, 389–92). This was done by a highly complicated process of having each side compile lists of names drawn from all states, by exchanging these lists, and then by challenge and agreement reducing the whole to a mutually acceptable remnant. On 8 Aug. 1782 the two groups of agents were able to reach agreement on William Whipple of New Hampshire, Nathanael Greene of Rhode Island, David Brearley and William Churchill Houston of New Jersey, Cyrus Griffin and Joseph Jones of Virginia, and John Rutledge of South Carolina. They also requested Congress to determine how much the commissioners should be paid for their services and in what manner and by whom they should be paid.
The Articles of Confederation were silent on these questions and the committee to whom the matter was referred (including James Madison and John Witherspoon) were emphatically of opinion that “no award of costs can by the law of the land be made by any Judicatory in any cause whatsoever unless provision be made for the purpose by some express and positive law”; that an award of costs in private practice, as it implied, on the one hand, a recompense for injury and, on the; other, a penalty for litigiousness, could not be followed because to do so would be “inconsistent with the dignity of Sovereign and Independent States”; and that all that could be done would be to recommend to the two litigant states to fall back upon colonial experience and have the contending parties bear all expenses equally. This recommendation was followed. But while Pennsylvania drew her costs—well over £1000—from the public treasury, Connecticut, ostensibly engaged in defending a public claim to a vast territory extending far beyond the narrow purchases claimed by the Susquehannah and other companies, revealed the true nature of the issue by passing on the costs to the shareholders of these companies. In addition to bearing this expense, the Susque-hannah Company gave one share each to Dyer, Johnson, and Root “as a gratuity” (Penna. Archives, 2d ser., xviii, 103; JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxiii, 466–8).
Of the seven commissioners agreed upon, the agents reported on 23 Aug. that Rutledge declined to serve and Greene could not, being on a military command in the south; they therefore dropped both names and substituted that of Thomas Nelson of Virginia. A general commission was made out for all, but Jones and Nelson declined, and the court as ultimately constituted included only Whipple, Arnold, Brearley, Houston, and Griffin. The commission, reciting the terms of Article IX which provided that no state should be deprived of territory for the benefit of the United States, directed the members of the court or any five or more of them to meet in Trenton, New Jersey, on 12 Nov. 1782 to hear arguments and, if a majority agreed, “finally determine the controversy … and if any of the parties shall refuse to submit to the authority of the … court, or to appear or defend their claim or cause, the … court shall nevertheless proceed to pronounce sentence or judgment, and the judgment or sentence … shall be final and conclusive” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxiii, 528–9; 533–6). In informing the members of their appointment, President John Hanson gave a solemn warning that “the peace of two states and consequently of the Whole Union depends upon an amicable and final settlement of this dispute.” It is worth noting that Dyer, without question the most ardent defender of the Susquehannah Company’s interests, told Trumbull that he thought the members of the court bore “a good carracter for Candor and Impartiallity, [but] the local situation of four of them are not so agreeable as we could wish.” These four were obviously the two from New England and two from New Jersey—all from states having no charter claims to western lands; what Dyer wished to see was a good representation on the court from a state like Virginia.
Connecticut’s agents again played a delaying game when the Court of Commissioners finally became organized on 18 Nov. 1782. They moved that Pennsylvania’s petition to Congress asking that a court be established be produced and read. This was over-ruled. They then moved that, as there were several thousand persons living on the Sus-quehanna river and claiming title to lands under Connecticut or Pennsylvania, proceedings be suspended until these claimants could be “duly cited in some proper and reasonable manner” to appear and defend their interests. Since the Court of Commissioners was enabled to try only the question of jurisdiction and not the private right of soil, this was obviously an attempt to delay. The Court, after argument, decided that a proper construction of its powers under Article IX and the commission they held would not authorize the admission of the Connecticut motion. 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,” then gave formal notice in the presence of the court that they would oppose any such motion if it came after arguments were opened or the cause entered upon and expressed their willingness, if the Connecticut agents had any such intent, “that time be given them for that purpose.” To this the Connecticut agents responded that they did not wish to give any unnecessary delay, but that Pennsylvania had “not … yet filed any declaration or state of their claim … whereby the agents of Connecticut can know what the demands of Pennsylvania are, or what they have to answer to”; they asserted further that they lacked “a certain original deed from the Indians” that had been left in England before the Revolution, as well as “other necessary evidence and proofs,” but they were nevertheless willing to proceed to the trial “reserving … the right of moving in any stage … to have the same postponed, as the nature and exigencies of the case may require.” The Pennsylvania agents replied that they were ready to present their claim, and had been for some time, but that they thought the Court should not hear any motion to postpone after the trial was begun. The Court ordered both motions to be filed, and the litigants then stated their claims. Finally, on 25 Nov., arguments got under way. “The merits of the Controversy,” James Madison wrote, “are like to be brought under trial of the Court at Trenton, the Agents for Connecticut having been foiled in every plea for an adjournment. But I do not hear that any progress is made from which the issue can be presumed” (Madison to Randolph, 3 Dec. 1782; Burnett, Letters of Members, vii, No. 695).
The proceedings of the Court of Commissioners do not contain the arguments of opposing counsel. Fragmentary notes have been printed in “Documents Relating to the Connecticut Settlement in the Wyoming Valley,” Penna. Archives, 2d ser., xviii (1893), p. 621–9, but the arguments of the two outstanding figures, James Wilson and William Samuel Johnson, have never been published. An outline of their arguments as taken down by Cyrus Griffin during the trial is in DLC: TJ Papers and is here published for the first time (Document ii). Jefferson no doubt obtained this from Griffin and, probably about the same time, he acquired an authenticated copy of the proceedings of the Court of Commissioners. Obviously he could not have obtained either Griffin’s notes or the transcript of the proceedings for the purpose of preparing his report on the petition of Zebulon Butler, for there would not have been sufficient time to write to Virginia for the former (only five days intervened between the presentation of the petition and the handing in of the report) and, having at that time ready access to the archives of Congress, he would have had no need to ask for an authenticated copy of the latter. It is plausible, therefore, to assume that Jefferson must have obtained these two important documents during 1783 for some other purpose. Since, as Appendix iii in this Volume makes clear, he was engaged in investigating colonial charters and other bases of claims to western territory in order to assist in stating Virginia’s claim, it is very likely that he acquired these documents for that purpose in Jan. 1783; he was in Philadelphia then and must have seen Griffin when the latter passed through on his return to Virginia. Other evidence for this is presented in notes to Document VI in the present series. (The transcript of the proceedings of the Court of Commissioners is in DLC: TJ Papers, 9: 1404–22; it is in a clerk’s hand and is signed by Thomson as an “Extract from the Journal of Congress,” 2 Jan. 1783; the original record, signed by the five Commissioners, is in PCC: No. 77, p. 246–85, and is printed in JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxiv, 6–32).
On 30 Dec. 1782, after more than a month of hearing arguments, the Court of Commissioners handed down a decision which contained no opinions or assessment of the issues involved. They merely announced as a unanimous decision that “the State of Connecticut has no right to the lands in controversy” and 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.”
This brief outline of the case of Pennsylvania v. Connecticut and of its background is sufficient to show the extreme unlikelihood that the Court of Commissioners were involved in any “agreement” which predetermined the outcome. The delaying and obstructionist tactics of the Connecticut counsel in the selection of the members of the Court, their similar tactics in their roles as Connecticut delegates in Congress, the repetition of these efforts to block the proceedings when the trial began—all point inescapably to the conclusion that Connecticut’s counsel viewed their legal position as weak, not that a decision had been prearranged. Madison’s statement during the trial and William Samuel Johnson’s argument (see Document ii) against the impropriety of injecting questions of policy into a trial of a question of legal right also support the view that the proceedings were conducted fairly. The subsequent course of events relating to the private right of soil confirms this view. (See also Document iv and notes.)
The Court of Commissioners wrote to President John Dickinson of Pennsylvania that the conflicting claims of those holding titles under Connecticut or Pennsylvania to the same lands could not properly come before them. They urged that conciliatory measures be adopted with respect to the Connecticut settlers in the Wyoming Valley, and that matters be continued in “the present peaceable posture until proper steps can be taken to decide the controversy respecting the private right of soil in the mode prescribed by the confederation” (31 Dec. 1782; Penna. Archives, 2d ser., xviii , 629–30). At Hartford, on 21 May 1783, the Susquehannah Company voted to apply to Congress for the appointment of another court to try the private right of soil (same, p. 104–105), and the Connecticut General Assembly at its Oct. 1783 session adopted several measures related to this effort. One declared that “this state has the undoubted and exclusive Right of Jurisdiction and Prmption to all the Lands lying West of the Western Limits of the State of Pennsylvania, and East of the Mississippi, and extending throughout from the Latitude 41° to Latitude 42° 2′ North”; it also directed Gov. Trumbull to issue a proclamation asserting the claim and forbidding all settlement within the area except under Connecticut authority. Another resolution recited the claims of the Wyoming inhabitants in language very similar to that of the petition here printed (Document iii). It also advised the settlers to apply to Congress for a court to try the private right of soil “as the only Remedy left them” and declared that “it will be the Duty of this State to countenance and patronize them in such application.” At the same time the Connecticut delegates in Congress were directed “to give them all necessary Aid therein” and Gov. Trumbull was ordered to “address a full state of their Claims and Sufferings to Congress, and solicit the protection of that Honorable Body until a final adjudication of the Cause shall be had.” A third resolution declared that since the trial at Trenton information had been received “of some Evidence, Material to the Cause, then concealed and suppressed from the knowledge of this State or its Agents” and that “there is a probability of ascertaining other facts on which to ground a revision of said Cause.” In view of this, the resolution directed Dyer, Johnson, and Root to be continued as agents for the state and directed them “to pursue their Enquiries after Evidence.” This last resolution was obviously intended as a threat to reopen the matter as an issue between two states.
These interrelated measures can only be interpreted as intended to lay a foundation for future claims in respect to territory west of Pennsylvania. Roger Sherman, a dominant figure in Connecticut politics, had been present at the General Assembly that adopted these resolutions and there can be little doubt that, if he did not originate the strategy which they reflected, he must have had a powerful influence in its formulation. On 13 Jan. 1784 Sherman arrived at Annapolis, took his seat in Congress, and presented a letter from Gov. Trumbull to the president of Congress which enclosed authenticated copies of the Connecticut measures, together with the proclamation asserting claim to lands between Pennsylvania and the Mississippi (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 15, 21; all of the documents referred to are in PCC: No. 66, ii, 256–64). The letter from Trumbull to Mifflin underscored the hidden threat in the Assembly’s resolution: “The Decision in the case of the disputed Territory between this State and that of Pennsylvania, was not only very unexpected to the Legislature of this State, but, from some circumstances, appears to them very singular indeed;—and such as calls for their further prosecution; and in which they hope to produce such Documents as shall obtain the further interposition of Congress.” He did not state the case of the sufferings of the Wyoming people (which were real) as he had been directed by the Assembly to do, for the Connecticut delegates had been present when the matter was discussed and were, he declared, “fully possessed of the subject” (same, ii, 256–8).
Trumbull’s letter and accompanying documents were read in Congress on 13 Jan. 1784 and referred the same day to a committee composed of Jefferson, Lee, and Williamson. There is no mention in the Journals either of the reading or the commitment, but Thomson’s journal of committee assignments under that date shows that the committee were charged with reporting on the following: “Letter Novr. 1 W. Williams Speaker and Address of Assembly of Connecticut respecting commutation for half pay. Novr. 15. Govr Trumbull and Act and resolution of Assembly respecting claim to western territory and the decision on the dispute between Pensylva. and Connecticut” (Committee Book, PCC: No. 186; that part of the committee report respecting half-pay was written by Arthur Lee and was submitted on 26 Feb.; see JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 100–103). From evidence in the rough draft of his first report, it appears that Jefferson immediately sat down to compose a report that would effectively repudiate the Connecticut insinuations against the Court of Commissioners and would, at the same time, block the threat implicit in the Connecticut measures of reopening the case of Pennsylvania v. Connecticut (see note 1 to Document iv). On 16 Jan. the petition of Zebulon Butler was received and referred to a committee also composed of Jefferson, Lee, and Williamson (Committee Book, PCC: No. 186, under 16 Jan. 1784). The report was handed in on 21 Jan. after suitable changes had been made in the rough draft and then in the fair copy so as to include a reference to the Wyoming petition, but the emphasis was still primarily upon regarding the question of jurisdiction as finally determined and secondarily upon establishing another court for the trial of the private right of soil. The second report, authorizing the establishment of a court to try the private right of soil, was approved 23 Jan. 1784.
It is plain from the nature of the reports and from the alterations made in them by Jefferson and by Congress that a tug of war was in progress between Jefferson and Sherman. The report submitted on 21 Jan. (Document v) was a strong defense of the Court of Commissioners’ conduct in the case of Pennsylvania v. Connecticut; it merely mentioned Trumbull’s statement of Connecticut’s claim to lands westward of Pennsylvania. In the debate on the report on 22 Jan. Sherman and his colleagues evidently found it politic to disavow the insinuations made by Connecticut against the Court of Commissioners and the threat of reopening the case. For not only did the report slam the door vigorously on such intentions, but the arrival of a delegate from Pennsylvania while the matter was under discussion introduced an individual who was personally involved in the operations and political maneuvers of the Pennsylvania land speculators concerning Wyoming—John Montgomery—and provided a timely ally in support of Jefferson’s belief that “it is for the quiet of these states that such determinations should be final and conclusive” (see note 2, Document iv). “I was not in Congrass when the petition of Butler and others and the letter from the Governor of Connecticut were first read,” Montgomery reported to President Dickinson, “nor did I arrive untill the Committie to whom they had been referred had made report and Congrass was ready to Come to a decision. Upon first hearing the Bussiness I did not like it and was dissposed to give it all the oposition in my power ess[pe]cially as I p[e]rceived by a part of governor Trumbull’s letter that the State of Connecticut was not satisfied with the Judgement given and thire was some expressions which seemed to intimate that they want’d it set asside and a new trail granted. But as the Delegates of that State disavowed such intention and moved for exsepunging that part of the report which referred to the exceptionable part of the letter and only insisted on the right of the petitioners, and as that right was founded on the Articles of Confederation, I acquiesed and left my collegues who had heard the matter from the beginning to give the vote of the State” (Burnett, Letters of Members, vii, No. 535).
This debate and the resultant amendment must have taken place on 22 Jan., for it was on that day that Montgomery took his seat in Congress (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 44). The report was recommitted and the next day Jefferson submitted a new report which was wholly concerned with the authorization of a court to try the private right of soil and with the setting up of procedures by which this could be accomplished (Document iv). But whereas the first report had merely mentioned the fact that Connecticut had asserted a claim to lands westward of Pennsylvania, the second pleaded lack of time for considering that claim.
The Pennsylvania legislature did not share Montgomery’s view of the action taken by Congress on 23 Jan. and on 14 Feb. passed a series of resolutions directing their delegates to move for a reconsideration of the resolution and, failing this, to propose that Congress require the Wyoming inhabitants to “exhibit to Congress schedules particularizing their claims” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 280–1). Accordingly, on 24 Apr. Hand brought forward a motion that, since Article IX of the Articles of Confederation provided for the establishment of a court of commissioners to try the private right of soil only in instances where such right was claimed under different grants of two or more states and since the Wyoming settlers had not proved that they came within this category, the resolution of 23 Jan. be suspended until the petitioners should exhibit to Congress such schedules as had been called for by the Pennsylvania legislature and that the claimants or their agents should not appear before Congress or the committee “until the further determinations of Congress” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 280–2). This motion evidently was debated and another, by Hand, to refer it to a committee was adopted by an overwhelming vote; Sherman and Wadsworth of Connecticut were joined in opposition only by Ellery of Rhode Island and Beatty of New Jersey; Jefferson voted with the remainder of the Virginia delegation to commit (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 282). Hand’s motion was thereupon referred to a committee of which Jefferson was chairman (Committee Book, PCC: No. 186). Nothing further was heard from this committee, and, after Jefferson had left Congress, Thomson merely noted in his journal of committee assignments that the committee had been “renewed” (same, 28 May 1784).
Meanwhile, faced by ejectment suits brought by Pennsylvania land speculators and by forcible dispossession, the Connecticut settlers drew up another petition on 1 May 1784 which was borne to Annapolis by John Franklin, one of the most remarkable leaders of the American frontier who was now emerging to succeed Zebulon Butler as the dominant figure in the troubled area of the Connecticut settlements along the Susquehanna. Franklin arrived in Annapolis early in May and gave the petition to Sherman, who presented it to Congress on 7 May (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 363, note; PCC: No. 42, i, 298–305; Burnett, Letters of Members, vii, No. 593). It was referred to the same committee to which the motion of Edward Hand on the Pennsylvania measures had been given on 24 Apr.; Jefferson was chairman of this committee, but he was no longer in Congress (Committee Book, PCC: No. 186; JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvii, 400). On 2 June the committee brought in a report recommending that the day for appointing a court be postponed from the fourth Monday in June to the first Monday in November and that all persons actually possessed of lands or buildings in the disputed territory prior to the decree of the Court of Commissioners should be quieted in their possessions until “a legal decision can be had on their right” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvii, 526–7). Sherman reported to Zebulon Butler on 15 June that “this report was given in the last day of the session, and there was not time to act upon it, but the Committee of the States can pass upon it if the parties desire it” (Burnett, Letters of Members, vii, No. 625). He advised that Butler or an agent of the Wyoming settlers appear at Annapolis on 28 June as stipulated in the resolution of Congress of 23 Jan. On the day fixed, James Wilson and William Bradford appeared for Pennsylvania “and sent in to those of the Com’tee [of the States] then met, (being only five) a paper purporting, that they were ready to join in the appointment of Com’rs, for a Federal Court on the Claim at Wyoming, but no Person appearing on the other side, and the want of members, nothing was … done on that Subject. M[ess]rs Bradford, and Wilson, withdrew the same evening” (Jonathan Blanchard to Roger Sherman, 24 July 1784, Burnett, Letters of Members, vii, No. 655; also Nos. 634, 635). John Franklin had promised as late as 3 Apr. that the Wyoming settlers would certainly have an agent at Annapolis on the day appointed. But, even while he was presenting the petition of 1 May, the Pennsylvania landholders began a wholesale and brutal dispossession of hundreds of Connecticut men, women, and children, and by 28 June Franklin was laying formal siege to the fort occupied by the Pennsylvania forces. Wyoming was again involved in another and final Pennamite war.
On 21 Sep. 1785 the resolution of 23 Jan. 1784 calling for the establishment of a court to determine the private right of soil was repealed. This was ostensibly done on the ground that the petition of Butler and others had not described with sufficient certainty the tract of land claimed nor “particularly named the private adverse claims under grants from the Commonwealth of Pennsylvania” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxix, 725–31; cf. same, xxvii, 603–605). John Franklin, who was then in New York, presented a petition the next day asking the reasons for this action and requesting protection in their possessions until a petition could be brought in on the whole subject (PCC: No. 41, iii, p. 326). This was referred to a committee of which William Samuel Johnson was chairman (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxix, 737, note). There is nothing in the Journals of Congress concerning the report of this committee, but Franklin on 28 Sep. 1785 made the following entry in his carefully kept diary of actions taken in Congress concerning the dispute: “This day the committee report in favor of our petition. That the repeal of the resolution of Congress was founded in the insufficiency of the allegations, and defective description of the lands in controversy, and was not intended to foreclose the proprietors, settlers and claimants of lands at and near Wyoming, for the appointment of a Federal court to try their rights of soil … when a petition shall be brought describing the land, and naming the adverse claimants with due degree of certainty. … The report was disapproved” (Charles Miner, History of Wyoming, Philadelphia, 1845, p. 379; photostats in Wyoming Hist. and Geol. Soc.). In brief, though Johnson’s report held out a hope that a court would be authorized once a condition difficult if not impossible of realization had been met, Congress rejected even that shadow of a hope.
This was done despite the plain intent of the Articles of Confederation. Article IX provided that all controversies concerning the private right of soil “shall, on the petition of either party to the Congress of the United States (italics supplied)” be finally determined in the manner stipulated for determining disputes between different states concerning territorial jurisdiction. The repeal of 1785 was a flat denial to the Wyoming settlers of the machinery provided by the national constitution. It had the effect of handing over the determination of the question of the private right of soil to the Pennsylvania legislature, a body that had demonstrated repeatedly in this matter its subservience to Philadelphia land speculators. A year after the repeal took place, Congress accepted the Connecticut cession of lands to the Mississippi beginning 120 miles westward of the western boundary of Pennsylvania (The Territorial Papers of the United States, ed. Clarence E. Carter, ii, 22–4). Looking at this sequence of events, the Connecticut inhabitants of the Wyoming region considered that they had been sacrificed to larger and more influential interests.
Their belief is understandable. As James Madison pointed out in the Federal Convention of 1787, the assumption that an understanding had taken place was the only adequate explanation for the inconsistent course followed by Congress. Indeed, he went much beyond this and, in the presence of William Samuel Johnson, flatly charged that a quid pro quo had been involved: “Have we not seen the public land dealt out to Con[necticu]t to bribe her acquiescence in the decree constitutionally awarded against her claim on the territory of Pena.? for no other possible motive can account for the policy of Cong’s in that measure?” (Farrand, Records of the Federal Convention, i, 316). This belief was expressed also by William Grayson of Virginia when the Connecticut cession came up for debate in 1786: “It appeared to the Virginia delegation,” he wrote, “that the only proper claim [to the territory ceded by Connecticut] was already vested in Congress by the cession of our state and that their cession was nothing but a State juggle contrived by old Roger Sherman to get a side wind confirmation to a thing they had no right to” (Grayson to Madison, 28 May 1786, DLC: Madison Papers; Burnett, Letters of Members, viii, No. 407; cf. David Howell’s opinion that the Kentucky petition of 1784 was only a Virginia move “to establish their jurisdiction over that Country by a side wind, as the phrase is”; same, vii, No. 521).
However, as indicated above, there is no reason to accept the view that this accommodation of interests involved the Court of Commissioners who decided the matter of jurisdiction (Charles Miner, History of Wyoming, Philadelphia, 1845, p. 309–10, 379). Nor is there reason to believe that the “deal” took place in the spring of 1784 when the national domain came into existence with the acceptance of Virginia’s cession. The Act of cession was in Jefferson’s hand at the time he was involved in the drafting of reports on the Butler petition; it was finally presented to Congress on 11 Feb. 1784, referred to a committee of which Sherman was chairman, and favorably reported upon by Sherman himself (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 89–90; see notes to documents on Virginia cession 1 Mch. 1784). And it was Sherman, evidently, who gained John Montgomery’s support for Jefferson’s report on the Butler petition by assuring him that Connecticut did not really mean to reopen the case of Pennsylvania v. Connecticut, despite her resolutions of 1783. Montgomery, in turn, was apparently the Pennsylvania delegate by whose single vote the acceptance of the Virginia cession became law (see notes to TJ to Harrison, 3 Mch. 1784). But these coincidences only serve to cloak in deeper mystery the subtle legislative maneuvers of Roger Sherman, who was described by a contemporary who knew him well as being “as cunning as the Devil” in such enterprises (Jeremiah Wadsworth; Life and Correspondence of Rufus King, ed. C. R. King, i , 221). For, despite those maneuvers, the essential intent of Jefferson’s first report on the Butler petition remained intact when it was recommitted and its text altered. Sherman and Jefferson were no doubt allies in persuading Montgomery and the Pennsylvania delegates to accept a report which established machinery for trying the private right of soil. They were also apparently allied on the question of the Virginia cession. But when Pennsylvania endeavored to upset this machinery with Hand’s resolution of 24 Apr. 1784, Jefferson was able to sidetrack the effort by forcing a commitment and by allowing the resolution to slumber in a committee of which he was chairman. As long as he was in Congress, the Connecticut settlers along the Susquehanna were assured of the benefits conferred by his report. The real “State juggle contrived by old Roger Sherman” must have come when Congress repealed this assurance in Sep. 1785. (Sherman was not in Congress at that time, but William Samuel Johnson was there and was of course “fully possessed of the subject,” as Trumbull had put it; cf., however, Roger Sherman Boardman, Roger Sherman, 1938, p. 160–1.)
But, for a time in 1784, the two strong legislative leaders who were so uncongenial in personality and outlook must have come to some kind of understanding whereby the embarrassing assertion of Connecticut’s western claim was left untouched or at least held in suspense (“The Committee having not had time,” &c.), the acceptance of Virginia’s cession was assured, and the decree in the case of Pennsylvania v. Connecticut confirmed against a possibility of reversal. If this conjecture is correct, John Montgomery must have been a central figure in this temporary alliance of discordant elements. Montgomery’s official reason for agreeing to Jefferson’s report was this: “it appeared to me that the Court to decide upon the private right of Soil cou’d not be apointed nor have any right to sit or act unless it was taken for granted that the jurisdiction was previously and finally adjudged and Determined” (Montgomery to Dickinson, 7 Mch. 1784; Burnett, Letters of Members, vii, No. 535). But this was an explanation that Montgomery did not give until a week after he had cast the deciding vote on the Virginia cession on 1 Mch. 1784, and its interpretation of Article IX of the Articles of Confederation may possibly rest upon a hint that had been supplied him by the one who was the chief architect of the national domain (Jensen, The New Nation, p. 353)—and who, like Sherman, was also skilled in legislative maneuvers.
Once the Treaty of Peace had been ratified, Jefferson’s major objective in Congress was the establishment of the national domain and the formulation of ordinances for its government. It was in this context that his strategy over the Wyoming matter must be considered. But there was another and even higher context. Document VI, though its precise date is indeterminate, is evidence that Jefferson did not lose sight of universal goals even in the midst of legislative jockeying. The case of Pennsylvania v. Connecticut, like that of Massachusetts v. New York, was to him “such another proof of the empire of reason and right” as the world had not theretofore produced.
Nearly a quarter of a century after these events, Jefferson took notes, while presiding over the Senate, on the bill to accept Connecticut’s cession of the territory involved in the Western Reserve (DLC: TJ Papers, 105:17968).