USA > New York > The history of the late province of New-York, from its discovery, to the appointment of Governor Colden, in 1762. Vol. I > Part 17
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" We thankfully accept the honour you do us, in calling yourself our countryman ; give us leave then to desire that you will not forget this as your coun- try, and, if you can, make haste to return to it.
"But if the service of our sovereign will not admit of what we so earnestly desire, and his com- mands deny us that happiness, permit us to address you as our friend, and give us your assistance, when we are oppressed with an administration the reverse of yours."
Colonel Hunter departing the province, the chief command devolved, the 31st of July, 1719, on Peter Schuyler, esq. then the eldest member of the board of council. As he had no interview with the assembly during his short administration, in which he behaved with great moderation and integrity, there is very little observable in his time, except a treaty at Albany with the Indians, for confirming the ancient league, and the transactions respecting the parti- tion line between this and the colony of New-Jersey : concerning the latter of which I shall now lay before the reader a very summary account.
The two provinces were originally included in the grant of king Charles to the duke of York. New- Jersey was afterwards conveyed by the duke to lord
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Berkley and sir George Carteret. This again, by a deed of partition, was divided into east and west Jersey, the former being released to sir George Car- teret, and the latter to the assigns of lord Berkley. The line of division extended from Little Egg har- bour to the north partition point on Delaware river, and thus both those tracts became concerned in the limits of the province of New-York. The original rights of lord Berkley and sir George Carteret, are vested in two different sets, consisting each of a great number of persons, known by the general name of the Proprietors of East and West Jersey, who, though they surrendered the powers of govern- ment to queen Anne in the year 1702, still retained their property in the soil. These were the persons interested against the claim of New-York. It is agreed on all sides, that the deed to New-Jersey is to be first satisfied out of that great tract granted to the duke, and that the remainder is the right of New-York. The proprietors insist upon extending their northern limits to a line drawn from the latitude of 41º 40' on Delaware, to the latitude of 41º, on Hudson's river, and allege that before the year 1671, the latitude of 41º was reputed to be fourteen miles to the northward of Tappan creek, part of those lands being settled under New-Jersey till 1684.
They also contend that in 1684 or 1685, Dongan and Lawrie, (the former governor of New-York, and the latter of New-Jersey,) with their respective councils, agreed that the latitude on Hudson's river was at the mouth of Tappan creek, and that a line from thence to the latitude of 41º 40' on Delaware should be the boundary line. In 1686, Robinson,
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Wells,* and Keith, surveyors of the three several provinces, took two observations, and found the latitude of 41° to be 1' and 25" to the northward of the Yonker's mills, which is four miles and forty-five chains to the southward of the mouth of Tappan creek; but against these observations the proprietors offer sundry objections, which it is not my business to enumerate. It is not pretended by any of the litigants, that a line according to the stations settled by Dongan and Lawrie was actually run ; so that the limits of these contending provinces must long have existed in the uncertain conjectures of the inhabitants of both ; and yet the inconveniences of this unsettled state, through the infancy of the country, were very inconsiderable. In the year 1701, an act passed in New-York, relating to elections, which annexed Wagachemeck, and great and little Minisink, certain settlements near Delaware, to
Ulster county. The intent of this law was to quiet disputes before subsisting between the inhabitants of those places, whose votes were required both in Orange and Ulster. The natural conclusion from hence is, that the legislature of New-York then deemed those plantations not included within the New-Jersey grant.
Such was the state of this affair till the year 1717, when provision was made by this province for run- ning the line : the same being done in New-Jersey the succeeding year, commissions for that purpose, under the great seals of the respective colonies, were issued in May, 1719. The commissioners by inden-
* The same who left the quakers, and took orders in the church of England. Burnet's history of his own times.
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ture dated the 25th of July, fixed the north station point on the most northern branch of the Delaware, called the Fishkill; and from thence a random line was run to Hudson's river, terminating about five miles to the northward of the mouth of Tappan creek. In August the surveyors of East-Jersey met for fixing the station on Hudson's river. All the commissioners not attending through sickness, nothing further was done. What had already been transacted, however, gave a general alarm to many persons interested in several patents under New- York, who before imagined their rights extended to the southward of the random line. The New-York surveyor afterwards declined proceeding in the work, complaining of faults in the instrument which had been used in fixing the north station on Dela- ware. The proprietors, on the other hand, think they have answered his objections, and the matter rested, without much contention, till the year 1740. Frequent quarrels multiplying after that period, re- lating to the rights of soil and jurisdiction southward of the line in 1719, a probationary act was passed in New-Jersey, in February, 1748, for running the line ex parte, if the province of New-York re- fused to join in the work. Our assembly soon after directed their agent to oppose the king's confirmation of that act, and it was accordingly dropped, agreeable to the advice of the lords of trade, whose report of the 18th of July, 1753, on a matter of so much importance, will doubtless be acceptable to the reader.
" To the king's most excellent majesty :
" May it please your majesty : We have lately
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had under our consideration an act passed in your majesty's province of New-Jersey, in 1747-8, enti- tled, "An act for running and ascertaining the line of partition and division betwixt this province of New-Jersey, and the province of New-York."
"And having been attended by Mr. Paris, solici- tor in behalf of the proprietors of the eastern division of New-Jersey, with Mr. Hume Campbell and Mr. Henley, his counsel in support of the said act ; and by Mr. Charles, agent for the province of New-York, with Mr. Forrester and Mr. Pratt, his counsel against the said act ; and heard what each party had to offer thereupon ; we beg leave humbly to represent to your majesty, that the considerations which arise upon this act are of two sorts, viz. such as relate to the principles upon which it is founded, and such as relate to the transactions and circum- stances which accompany it.
"As to the first, it is an act of the province of New-Jersey, interested in the determination of the limits, and in the consequential advantages to arise from it.
" The province of New-Jersey, in its distinct and separate capacity, can neither make nor establish boundaries ; it can as little prescribe regulations for deciding differences between itself and other par- ties concerned in interest.
" The established limits of its jurisdiction and territory, are such as the grants under which it claims have assigned. If those grants are doubtful, and differences arise upon the constructions, or upon the matters of them, we humbly apprehend that there are but two methods of deciding them-either by
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the concurrence of all parties concerned in interest, or by the regular and legal forms of judicial pro- ceedings : and it appears to us, that the method of proceeding must be derived from the immediate authority of the crown itself, signified by a commis- sion from your majesty under the great seal : the commission of subordinate officers and of derivative powers, being neither competent nor adequate to such purposes: to judge otherwise would be, as we humbly conceive, to set up ex parte determinations and incompetent jurisdictions in the place of justice and legal authority.
" If the act of New-Jersey cannot include other parties, it cannot be effectual to the ends proposed ; and that it would not be effectual to form an absolute decision in this case, the legislature of that province seems sensible, whilst it endeavors to leave to your majesty's determination, the decision of one point re- lative to this matter, and of considerable importance to it; which power you rmajesty cannot derive from them, without their having the power to establish the thing itself, without the assistance of your majesty.
"As we are of opinion that the present act, with- out the concurrence of other parties concerned in interest, is unwarrantable and ineffectual, we shall in the next place consider what transactions and proceedings· have passed towards obtaining such concurrence.
" The parties interested are your majesty and the two provinces of New-York and New-Jersey. Your majesty is interested with respect to your sovereignty, seigneurie, and property ; and the said provinces with respect to their government and jurisdiction.
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" With regard to the transactions on the part of New-York, we beg leave to observe, that whatever agreements have been made formerly between the two provinces for settling their boundaries; what- ever acts of assembly have passed, and whatever commissions have been issued by the respective governors and governments ; the proceedings under them have never been perfected, the work remains unfinished, and the disputes between the two pro- vinces subsist with as much contradiction as ever; but there is a circumstance that appears to us to have still more weight, namely, that those transactions were never properly warranted on the part of the crown; the crown never participated in them, and therefore cannot be bound with respect to its interests by proceedings so authorized.
" The interest which your majesty has in the determination of this boundary, may be considered in three lights : either as interests of sovereignty, respecting mere government; of seigneurie, which respect escheats and quitrents; or of property, as relative to the soil itself; which last interest takes place in such cases, where either your majesty has never made any grants of the soil, or where such grants have by escheats reverted to your majesty.
" With regard to the first of these interests, viz. that of sovereignty, it has been alleged to us in support of the act, that it is not materially affected by the question, as both provinces are under your majesty's immediate direction and government: but they stand in a very different light with respect to your majesty's interest in the quitrents and escheats ; in both which articles the situation of the two pro- vinces appears to us to make a very material altera-
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tion: for although the province of New-Jersey is not under regulations of propriety or charter with res- pect to its government, yet it is a proprietary province with respect to the grant and tenure of its territory, and consequently as New-York is not in that pre- dicament, the determination of the boundary in prejudice to that province, will affect your majesty's interest with respect to the tenure of such lands as are concerned in this question : it being evident, that whatever districts are supposed to be included in the limits of New-Jersey, will immediately pass to the proprietors of that province, and be held of them, by which means your majesty would be deprived of your escheats, and the quitrents would pass into other hands.
" To obviate this objection, it has been alleged that the crown has already made absolute grants of the whole territory that can possibly come in ques- tion under the denomination of this boundary, and reserved only trifling and inconsiderable quitrents on those grants : but this argument does not seem to us to be conclusive, since it admits an interest in your majesty, the greatness or smallness of which is merely accidental ; and therefore does not affect the essence of the question : and we beg leave to observe, that in the case of exorbitant grants with inconsiderable quitrents ; and where consequently it may reasonably be supposed, that the crown has been deceived in such grants by its officers ; your majesty's contingent right of property in virtue of your seigneurie, seems rather to be enlarged than diminished.
" 'This being the case, it appears to us that gover- nor Hunter ought not to have issued his commis-
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sion for running the line above mentioned, without having previously received the royal direction and instruction for that purpose ; and that a commission issued without such authority, can be considered, with respect to the interests of the crown, in no other light than as a mere nullity : and even with respect to New-York, we observe that the said com- mission is questionable, as it does not follow the directions of the above-mentioned act, passed in 1717, which declares, that the commission to be issued, shall be granted under the joint authority of the governor and council of that province.
" But it has been further urged that the crown has since confirmed these transactions, either by pre- vious declarations or by subsequent acquiescence, and consequently participated in them so far as to include itself: we shall therefore, in the next place, beg leave to consider the circumstances urged for this purpose.
" It has been alleged that the crown, by giving consent to the aforesaid act, passed in New-York in 1717, for paying and discharging several debts due from that colony, &c. concluded and bound itself with 'respect to the subsequent proceedings had under the commission issued by governor Hunter ; but the view and purport of that act appear to us so entire, and so distinctly formed for the purpose of raising money and establishing funds; so various and so distinct from any consideration of the dis- putes subsisting in the two provinces, with respect to the boundaries ; that we cannot conceive a single clause in so long and so intricate an act, can be a sufficient foundation to warrant the proceedings of governor Hunter subsequent to it, without a special
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authority from the crown for that purpose; and there is the more reason to be of this opinion, as the crown, by giving its assent to that act, can be con- strued to have assented only to the levying money for a future purpose; which purpose could not be effected by any commission but from itself ; and, therefore, can never be supposed to have thereby approved a commission from another authority, which was at that time already issued, and carrying in execution, previous to such assent.
"We further beg leave humbly to represent to your majesty, that the line of partition and division between your majesty's province of New-York and colony of Connecticut, having been run and ascer- tained, pursuant to the directions of an act passed at New-York for that purpose, in the year 1719, and confirmed by his late majesty in 1723; the transac- tions between the said province and colony, upon that occasion, have been alleged to be similar to, and urged as a precedent, and even as an approbation of the matter now in question: but we are humbly of opinion that the two cases are materially and essentially different. The act passed in New-York, in 1719, for running and ascertaining the lines of partition and division between that colony and the colony of Connecticut, recites, that in the year 1683, the governor and council of New-York, and the governor and commissioners of Connecticut, did, in council, conclude an agreement concerning the boundaries of the two provinces; that, in con- sequence of this agreement, commissioners and surveyors were appointed on the part of each go- vernment, who did actually agree, determine, and ascertain, the lines of partition ; marked out a certain
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part of them, and fixed the point from whence the remaining part should be run : that the several things agreed on and done by the said commissioners were ratified by the respective governors ; entered on record in each colony, in March 1700 ; approved and confirmed by order of king William, the third, in his privy council ; and by his said majesty's letter to his governor of New-York. From this recital it appears to us, that those transactions were not only carried on with the participation, but confirmed by the express act and authority of the crown ; and that confirmation made the foundation of the act passed by New-York, for settling the boundaries between the two provinces; of all which authority and foun- dation the act we now lay before your majesty appears to us to be entirely destitute.
"Upon the whole, as it appears to us that the act in question cannot be effectual to the ends proposed ; that your majesty's interest may be materially affected by it, and that the proceedings on which it is founded were not warranted in the first instance by the proper authority, but carried on without the partici- pation of the crown; we cannot think it advisable to lay this act before your majesty, as fit to receive your royal approbation.
" Which is most humbly submitted, " DUNK HALIFAX, "J. GRENVILLE, " JAMES OSWALD, "ANDREW STONE.
" Whitehall, July 18, 1753."
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HISTORY OF NEW-YORK.
PART V.
FROM THE YEAR 1720 TO THE COMMENCEMENT OF THE ADMINISTRATION OF COLONEL COSBY.
WILLIAM BURNET, esq. took upon him the govern- ment of this province, on the 17th of September, 1720. The council named in his instructions were COL. SCHUYLER, MR. BARBARIE,
COL. DEPEYSTER,
MR. PHILIPSE,
CAPT. WALTER,
MR. BYERLY,
COL. BEEKMAN, MR. CLARKE,
MR. VAN DAM, DR. JOHNSTON,
COL. HEATHCOTE, MR. HARISON.
Mr. Burnet was a son of the celebrated bishop of that name, whose piety and erudition, but espe- cially his zeal and activity for the glorious revolution and protestant succession, will embalm his memory to the most distant ages. The governor was a man of sense and polite breeding, a well read scholar, sprightly, and of a social disposition. Being devoted to his books, he abstained from all those excesses into which his pleasurable relish would otherwise have plunged him. He studied the arts of recom- mending himself to the people, had nothing of the
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moroseness of a scholar, was gay and condescending, affected no pomp, but visited every family of repu- tation, and often diverted himself in free converse with the ladies, by whom he was very much admired. No governor before him, did so much business in chancery. The office of chancellor was his delight. He made a tolerable figure in the exercise of it, though he was no lawyer, and had a foible very unsuitable for a judge, I mean his resolving too speedily, for he used to say of himself, "I act first and think afterwards." He spoke however always sensibly, and by his great reading was able to make a literary parade .- As to his fortune it was very inconsiderable, for he suffered much in the South Sea scheme. While in England, he had the office of comptroller of the customs at London, which he resigned to brigadier Hunter, as the latter, in his favour, did the government of this and the colony of New-Jersey. Mr. Burnet's acquaintance with that gentleman gave him a fine opportunity, before his arrival, to obtain good intelligence both of per- sons and things. The brigadier recommended all his old friends to the favour of his successor, and hence we find that he made few changes amongst them .* Mr. Morris, the chief justice, was his principal confidant: Dr. Colden and Mr. Alexander, two Scotch gentlemen, had the next place in his esteem. He showed his wisdom in that choice, for they were both men of learning, good morals, and solid parts. The former was well acquainted with
* Colonel Schuyler and Mr. Philipse were, indeed, removed from the council board, by his representations ; and their opposing, in council, the continuance of the assembly, after his arrival. was the cause of it.
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the affairs of the province, and particularly those which concerned the French in Canada and our Indian allies. The latter was bred to the law, and, though no speaker, at the head of his profession for sagacity and penetration ; and in application to business no man could surpass him. Nor was he unacquainted with the affairs of the public, having served in the secretary's office, the best school in the province for instruction in matters of government; because the secretary enjoys a plurality of offices, conversant with the first springs of our provincial economy. Both those gentlemen Mr. Burnet soon raised to the council board, as he also did Mr. Morris, jun. Mr. Van Horn, whose daughter he married, and Mr. Kennedy, who succeeded Byerly both at the council board, and in the office of receiver-general.
Of all our governors, none had such extensive and just views of our Indian affairs, and the dangerous neighborhood of the French, as governor Burnet, in which Mr. Livingston was his principal assistant. His attention to these matters appeared at the very commencement of his administration, for in his first speech to the assembly, the very fall after his arrival, he laboured to implant the same sentiments in the breasts of the members; endeavoring to alarm their fears by the daily advances of the French, their possessing the main passes, seducing our Indian allies, and increasing their new settlements in Louisiana.
Chief justice Morris, whose influence was very great in the house, drew the address in answer to the governor's speech, which contained a passage VOL. 1 .- 32
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manifesting the confidence they reposed in him. " We believe that the son of that worthy prelate, so eminently instrumental under our glorious monarch, William the third, in delivering us from arbitrary power, and its concomitants, popery, superstition, and slavery, has been educated in, and possesses, those principles that so justly recommended his father to the council and confidence of protestant princes, and succeeds our former governor, not only in power, but inclination to do us good."
From an assembly impressed with such favour- able sentiments, his excellency had the highest reason to expect a submissive compliance with every thing recommended to their notice. The public business proceeded without suspicion or ' jealousy, and nothing intervened to disturb the tranquillity of the political state. Among the most remarkable acts passed at this session, we may reckon that for a five years' support; another for laying a duty of two per cent. prime cost, on the importation of European goods, which was soon after repealed by the king ; and a third, for pro- hibiting the sale of Indian goods to the French. The last of these was a favorite act of the gover- nor's ; and though a law very advantageous to the province, became the source of an unreasonable opposition against him, which continued through his whole administration. From the conclusion of the peace of Utrecht, a great trade was carried on between Albany and Canada, for goods saleable among the Indians. The chiefs of the confederates wisely foresaw its ill consequences, and complained
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of it to the commissioners of Indian affairs,* who wrote to Mr. Hunter, acquainting him of their dissatisfaction. The letter was laid before the house, but no effectual step taken to prevent the mischief, till the passing of this act, which subjected the traders to a forfeiture of the effects sold, and the penalty of £100. Mr. Burnet's scheme was to draw the Indian trade into our own hands ; to obstruct the communication of the French with our allies, which gave them frequent opportunities of seducing them from their fidelity ; and to regain the Caghnuagas, who became interested in their disaffection, by being the carriers between Albany and Montreal. Among those who were more immediately prejudiced by this new regulation, the importers of those goods from Europe were the chief ; and hence the spring of their opposition to the governor.
All possible arts were used, both here and at home, to preserve the good temper of the assembly. Brigadier Hunter gave the ministry such favorable
* The governors residing at New-York, rendered it necessary that some per- sons should be commissioned at Albany, to receive intelligence from the Indians and treat with them upon emergencies. This gave rise to the office of commis- sioners of Indian affairs, who in general transact all such matters as might be done by the governor. They receive no salaries, but considerable sums are deposited in their hands for occasional presents. There are regular minutes of their transactions from the year 1675. These were in separate quires, till Mr. Alexander, who borrowed them for his perusal in 1751, had them bound up in four large volumes in folio. Here all our Indian treaties are entered. The books are kept by a secretary commissioned in England, whose appointment is an annual salary of 1001. proclamation out of the quit-rents. The commandant at Oswego is generally a commissioner. The office would probably have been more advantageous than it has been, if the commissioners were not traders themselves, than which nothing is more ignoble in the judgment of the Indians Sir William Johnson is at present the sole commissioner, and within nine months after the arrival of general Braddock, received 10,0007. sterling, to secure the Indian iterest.
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