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Justice William Paterson Hold State Law Unconstitutional in Charge to Jury
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The case of Van Horne’s Lessee v. Dorrance (1795) was one of the earliest cases in which a federal court asserted the right to disregard a state law that conflicted with the state constitution. Justice William Paterson insisted that a Pennsylvania law that divested one person of property and vested it in another was inconsistent with the “inherent and unalienable rights of man” and a violation of the sanctity of contracts as guaranteed by both the Pennsylvania constitution and the Constitution of the United States.

WILLIAM PATERSON. The Charge of Judge Paterson to the Jury in the Case of Vanhorne’s Lessee against Dorrance: Tried at a Circuit Court for the United States held at Philadelphia, April Term 1795: Wherein the Controverted Title to the Wyoming Lands, Between the Claimants under Pennsylvania and Connecticut, Received a Decision. Philadelphia: Samuel H. Smith, 1796. 42 pp., 3.5 x 5.75 in.

Inventory #26251.10       Price: $3,500

Paterson’s discussion of judicial review in this charge to the jury was “the most extensive federal court discussion of judicial review before Marbury [v. Madison (1803)]” and “the most influential” of any of the pre-Marbury federal cases on the topic.[1] Its influence is due in part to its publication in this pamphlet form and in a report of federal cases by Philadelphia attorney and future Secretary of the Treasury Alexander J. Dallas (1759-1817) in 1798.

The title under Connecticut is of no avail. Because the land in controversy is ex-territorial; it does not lie within the charter-bounds of Connecticut, but within the charter-bounds of Pennsylvania.” (p7)

The Indian deed, under which the defendant claims, bears date the 11th of July 1754. It has been observed, that this deed is radically defective and faulty; that fraud is apparent on the face of it, and, particularly, that the specification or description of the land is written on a razure. Of this, gentlemen, you will judge, as the deed will be given to you for inspection. Permit me to observe, that there are several ways, by which a deed may be avoided or rendered of no effect. One of these is by razure, addition, interlining, or other alteration in any material part, if done after its execution. It is the province of the jury to determine, whether any such alteration was made after the delivery of the deed.” (p8)

The land in controversy being within the limits of Pennsylvania, the Connecticut settlers were in legal estimation, trespassers and intruders. They purchased the land without leave, and entered upon it without right. They purchased and entered upon the land without the consent of the legislature of Connecticut. True it is, that the legislature of Connecticut gave a subsequent approbation, but this was posterior to the deed executed by the Six Nations to Penn at fort Stanwix, and the principle of relation does not retrospect so as to affect third persons. The consequence is, that the Connecticut settlers derive no title under the Indian deed.” (p9)

What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles or fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it.” (p12)

In the course of argument, the counsel on both sides relied upon certain parts of the late bill of rights and constitution of Pennsylvania....” (p15)

It is, however, difficult to form a case, in which the necessity of a state can be of such a nature as to authorise or excuse the seizing of landed property, belonging to one citizen and giving it to another citizen. It is immaterial to the state, in which of its citizens the land is vested; but it is of primary importance, that, when vested, it should be secured, and the proprietor protected in the enjoyment of it. The constitution encircles, and renders it an holy thing. We must, gentlemen, bear constantly in mind, that the present is a case of landed property, vested by law in one set of citizens, attempted to be divested, for the purpose of vesting the same property in another set of citizens.” (p18-19)

The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable.” (p19)

A statute shall never have an equitable construction in order to overthrow or divest an estate.

Every statute, derogatory to the rights of property, or that takes away the estate of a citizen, ought to be construed strictly.” (p28)

When the legislature undertake to give away what is not their own, when they attempt to take the property of one man, which he fairly acquired, and the general law of the land protects, in order to transfer it to another, even upon complete indemnification, it will naturally be considered as an extraordinary act of legislation, which ought to be viewed with jealous eyes, examined with critical exactness, and scrutinized with all the severity of legal exposition. An act of this sort deserves no favor; to construe it liberally would be sinning against the rights of property.” (p35)

I shall close the discourse with a brief recapitulation of its leading points.

1. The confirming act is unconstitutional and void. It was invalid from the beginning, had no life or operation, and is precisely in the same state, as if it had not been made. If so, the plaintiffs title remains in full force.

2. If the confirming act is constitutional, the conditions of it have not been performed; and therefore the estate continues in the plaintiff.

3. The confirming act has been suspended—and

4. Repealed.

The result is, that the plaintiff is by law entitled to recover the premises in question, and of course to your verdict.” (p41)

Historical Background
The case of Van Horne’s Lessee v. Dorrance in the federal circuit court in Pennsylvania is memorable because of this charge to the jury by Justice William Paterson. The case involved conflicting claims by Pennsylvania and Connecticut to land in Luzerne County in northeastern Pennsylvania. Until the mid-1780s, Connecticut claimed the northern 40 percent of modern Pennsylvania and a portion of northeastern Ohio. When the Congress of the Confederation decided the area belonged to Pennsylvania but Connecticut settlers should be confirmed in the possession of the lands they had settled, Pennsylvania ignored the recommendation. Connecticut settlers proposed to create the independent State of Westmoreland in the area. To avoid further conflict, the Pennsylvania legislature agreed to honor Connecticut property claims that predated the Congress of the Confederation opinion in December 1782 and created Luzerne County, encompassing much of modern northeastern Pennsylvania, including the Wyoming Valley area.

The plaintiff was the lessee of Cornelius Van Horne (1750-1846), who derived his title to the property from a 1768 deed of the Six Nations to Thomas Penn and Richard Penn, the proprietaries of the Province of Pennsylvania after the death of their father William Penn (1644-1718). In 1774, Van Horne received a deed to several hundred acres of land in Northampton County, Pennsylvania (which included modern Luzerne County) from his father Thomas Van Horne, but in the Third Pennamite-Yankee War of 1784, he and other Pennsylvanians were drive off their lands by claimants from Connecticut. He settled in what is modern Crawford County in northwestern Pennsylvania in 1788.

The defendant John Dorrance (1733-1804) was in possession of the lot, containing 190 acres, and claimed the property under Connecticut, the Indians, and the state of Pennsylvania. Dorrance had moved from Windham County, Connecticut, with his family and served as pastor of the Presbyterian church in Wilkes-Barre for many years.

U.S. District Judge Richard Peters and U.S. Supreme Court Justice William Paterson presided over the case in the U.S. Circuit Court for the District of Pennsylvania. The trial lasted for fifteen days. In his summary of the case, Justice Paterson dismissed Dorrance’s claims under Connecticut and the Indians and focused on the question of whether the “quieting and confirming act” by the Pennsylvania legislature had given Dorrance proper ownership of the land. The principal question was whether the quiet title statute was constitutional under the Pennsylvania constitution. In his summary, Justice Paterson made clear that it was not and that the jury should find for the plaintiff.

After the jury found for the plaintiff in this case, Dorrance appealed to the U.S. Supreme Court in August 1796, but the Court continued it five times before dismissing it in February 1799 without an opinion on the merits. In February 1813, the Pennsylvania legislature passed a private act to compensate Van Horne for his lands in Kingston Township, Luzerne County. He received $2,225.83.

William Paterson (1745-1806) was born in Ireland and moved to the American colonies at a young age. After graduating from the College of New Jersey (Princeton) in 1763 and studying law under Richard Stockton, he was admitted to the bar in 1768. He helped write the 1776 Constitution of New Jersey and served as the state’s Attorney General from 1776 to 1783. He represented New Jersey at the 1787 Philadelphia Convention, where he proposed the New Jersey Plan, providing for equal representation among the states, and signed the new United States Constitution. Paterson represented New Jersey in the U.S. Senate as a Federalist from 1789 to 1790, and played a major role in drafting the Judiciary Act of 1789, establishing the federal court system. He resigned from the Senate to become the second governor of New Jersey, a position he filled from 1790 to 1793. In the latter year, President George Washington nominated him for the Supreme Court of the United States, and he resigned as governor to serve as an Associate Justice from 1793 until his death.

Samuel H. Smith (1772-1845) was born in Philadelphia and graduated from the University of Pennsylvania in 1787. He became a printer in Philadelphia in 1791 and soon began publishing a series of periodicals before achieving success with the Universal Gazettein 1797. Thomas Jefferson appreciated Smith’s moderate republicanism and in 1800 urged him to move the Gazette to Washington, D.C. He established the triweekly National Intelligencer and Washington Advertiser in October 1800. Throughout Jefferson’s presidency, the National Intelligencerwas Jefferson’s spokesman, and Smith also enjoyed lucrative government printing contracts. In 1810, he sold the newspaper to Joseph Gales Jr., and in 1813 became a commissioner of revenue. Smith briefly served as Secretary of the Treasury in 1814 and became president of the Bank of Washington and then the Washington branch of the Second Bank of the United States. Smith was also active in the American Colonization Society.

Condition: Modern Morocco-backed marbled boards.

[1] William Michael Treanor, “Judicial Review Before Marbury,” Stanford Law Review 58 (November 2005): 522.

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