USA > Vermont > Records of the Council of Safety and Governor and Council of the State of Vermont, to which are prefixed the records of the General Conventions from July 1775 to December 1777, Vol. I > Part 52
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As to the acts of ontlawry, mentioned in the proclamation, they died a natural death, the first day of January, 1776, as may be seen from the aet itself, here quoted : " And be it further enacted by the authority "aforesaid, that this act shall remain and continue in full force and effect, " from the passing thereof, until the first day of January, which will be in " the year of our Lord, one thousand seven hundred and seventy-six."
The subjects of the state of Vermont were under no apprehensions from these old lifeless acts. Nor do I conceive, that the present legisla- ture of the state of New- York have laid them under any obligation, in granting them a pardon. It was a matter which formerly respected gov- ernor Tryon, the old Legislature of New- York, and the green mountain boys ; and the party last mentioned, choose to settle that old quarrel with Mr. Tryon ; and resent it, that the legislature of the state of New-
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York have, so late in the day, undertook to give an " Unconditional dis- " charge and remission of all penalties and forfeitures incurred." under an act which had been long dead ; and which, when alive, served only to discover to the world, the wickedness and depravity of that legislative body which enacted them. In the lifetime of this act, I was called by the Yorkers an outlaw, and afterwards, by the British, was called a rebel ; and I humbly conceive, that there was as much propriety in the one name as the other : and I verily believe, that the king's commis- sioners would now be as willing to pardon me for the sin of rebellion. provided I would. afterwards, be subject to Britain, as the legislature above mentioned, provided I would be subject to New- York ; and, I must confess, I had as leave be a subject of the one as the other : and. it is well known. I have had great experience with them both.
Next. I propose to consider that part of the proclamation, called over- tures, which are contained in the three first articles. Article 1st. " That " all persons, actually possessing and improving lands, by title under " grants from New-Hampshire or Massachusetts-Bay. and not granted un- "der New- York, shall be confirmed in their respective possessions."
This first article cannot be considered of any material consequence, inasmuch as, amongst almost the whole possessions referred to in the article, there are but very few, if any, but what are covered with New- York grants.
The second article is as follows : "That all persons possessing and " improving lands, not granted by either of the three governments, shall " be confirmed in their respective possessions, together with such addi- " tional quantity of vacant land, lying contiguous to each respective pos- " session, as may be necessary to form the same into a convenient farm, " so as the quantity of land to be confirmed to each respective posses- " sion, shall not exceed three hundred acres."
Neither of these two first articles, called Overtures, atfeet the contro- versy, except in some very few instances : inasmuch as all, or in a man- ner. all the possessions spoken of, were first granted by Norr-Hampshire, except some few which were granted by Massachusetts-Bay ; and then, lastly, almost the whole of those possessions were re-granted by New- York. This being the case, what has been hitherto proposed, does not reach the essence of the controversy, as the New- Yorkers very well know ; besides, it is not in the power of the government to confirm any of those possessions, which have been already granted, and therefore become the property of the grantees, as will be more fully discussed in its proper place. I proceed to the third article of the much boasted Overtures,
" That where lands have been heretofore granted by New-Hampshire "and Massachusetts-Bay, or either of them, and actually possessed in " consequence thereof, and being so possessed. were afterwards granted " by New- York; such possession shall be confirmed. - the posterior grant " under New- York, notwithstanding."
Though it is absolutely out of the power of the said legislative author- ity, to confirm the possessions mentioned; yet, to discover their want of generosity in their proposal, I shall, in the first place, consider what a trifling proportion of those possessions could be confirmed upon their own stating, inasmuch as the confirming clause in the article, only con- firms the possessor, who being so possessed at the time that the Ner- York grant was laid : and has no respect to any additional possession carried on after the grant took place. The identical words are, " And being so possessed, were afterwards granted by New- York ;" viz. After such possession was actually made, and the possessor being so in posses- sion, at the time the grant took place: such possession shall be confirm-
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ed ; but any later possession cannot be included in the condition of "be- ing so possessed ;" for, a later possession was no possession at all, at the time the condition of possession took place ; and, consequently, every possession which has been begun in the state of Vermont, since the lands were granted by New-York, must be lost to the possessor, and fall into the hands of the New- York grantees, with all other uncultivated lands in the state : and all our purchases of those lands from New-Hampshire and Massachusetts-Bay, fall to the ground, together with our possessions, which have been increased an hundred fold.
These Overtures have hitherto been considered only in a grammatical and logical sense, allowing them their own construction. I now proceed to consider them in a law sense. A legislative authority, within its own jurisdiction, may confirm a possession on vacant land, by making a grant of the same to the possessor: But, for the legislative authority of the state of New-York, to pretend, as they do in their proclamation, to vacate any grants made by their own authority, in favor of any posses- sion, and to confirm such possessions, by nullifying and defeating their own grants, is the height of folly and stupidity : For, the lands being once granted, the propertey passeth to the grantee ; who is become the sole proprietor of the same : and he is as independent of that legislative authority, which granted it, as any person may be supposed to be, who purchaseth a farm of land of me by deed of conveyance ; and it is as much ont of the power of that Legislature to vacate a grant made by them, or the same authority, in favor of any possessor, as it is out of my power to vacate my deed of conveyance in favor of some second person. 11 is contrary to common sense to suppose, that the property of the sub- jeet is at the arbitrary disposal of the legislature : If it was, they might give a grant to-day. and vacate it to-morrow, and so on, ad infinitum. This would destroy the very nature and existance of personal property, as the whole would depend on the sovereign will and last act of the Leg- islature : But the truth of the matter is, the first conveyance will, and ought to hold good ; and this defeats all subsequent conveyances.
From what has been said on this subject, it appears, that the overtures in the proclamation set forth, are either romantic, or calculated to de- ceive woods people, who, in general, may not be supposed to understand law, or the power of a legislative authority.
I have further to evince my arguments on this subject, by the concur- ring opinion of the Lords of the Board of Trade, on complaint made to them from those very persons, possessing the land we are speaking of. That clause of their report which is similar to what I have argued, is in these words : "Such subsequent grants made by the government of New- York, however unwarrantable, cannot be set aside by any authority from his Majesty, in case the grantees shall insist on their title."
Thus it appears, in a trial (of the same case we are treating of) before the board of trade, that the king, under whose authority the govern- ment of New- York had, in an oppressive manner, granted those very lands, could not, by his royal authority, vacate or set aside the grants ; yet, the present legislative authority of the state of New-York, proclaim to the world, and pledge the faith of government, that they will do it. But enough has been said on the impossibility of it, as well as on the ungenerousness of the proposal : And as to the quit-rents, the General assembly of the state of Vermont will determine their expediency, and probably release them all.
What has been observed, answers every part of the proclamation worth notice, as the five last articles had an entire reference to the three first ; though it may be worth observing, that the time of compliance with those overtures are run out ; and it is my opinion, that but few of
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the subjects of the state of Vermont have closed with them. The main inducement I had in answering them was. to draw a full and convincing proof from the same, that the shortest, best, and most eligible. I had al- most said, the only possible, way of vacating those New- York interfer- ing grants, is, to maintain inviolable the supremacy of the legislative authority of the independent state of Vermont. This, at one stroke. overturns every New- York scheme, which may be calculated for our ruin ; makes us free men, confirms our property. "and puts it fairly in our power to help ourselves" to the enjoyment of the great blessings of a free, uncorrupted and virtuous civil government.
Bennington. August 9, 1778.
ON the 31st day of October 1778, the Senate and Assembly of the state of New- York, prevailed on his Excellency Governor CLINTON to issue his last Proclamation and dying Speech, to the citizens of the rising state of Vermont, which is here transcribed verbatim.
" By his Excellency GEORGE CLINTON, Esq; Governor of the State of New- York. General and Commander in Chief of all the Militia, and Admiral of the Navy of the same.
A PROCLAMATION.
L. S. WHEREAS the Senate and Assembly of this State, did by con- current resolutions, passed the 21st day of February last, pro- pose certain overtures with respect to the controverted lands, in the north eastern parts of the county of Albany, and certain parts of the counties of Cumberland. Charlotte and Gloucester. in order to quiet the disorders prevailing in that part of the state.
AND WHEREAS the said resolutions have been misrepresented by some, and misunderstood by others, and are deemed not to apply to the cases of many persons entitled to relief: by reason whereof apprehen- sions still remain on the minds of many of the inhabitants in that part of the state, and they have not in consequence thereof, returned to their allegiance to this state, within the time. for that purpose in said resolu- tion, limited.
AND WHEREAS the Senate and Assembly, in order more effectually to remove such apprehensions, and more fully to explain the said resolu- tions, and manifest the equitable intensions of the legislature, have by concurrent resolutions passed this present session,
RESOLVED. That with respect to all such lands, which have hereto- fore been granted by the governments of New Hampshire or Massachu- setts-Bay, and have not been since granted by the government of Neu- York ; that all such grants, under New-Hampshire or Massachusetts- Bay, shall be confirmed and declared good, valid and effectual, to all intents and purposes, as if the same had been made by the government of New- York ; and shall not be deemed null or void, by reason of the non-performance of any condition contained in the same.
AND WHEREAS it is impossible to establish any general principle for the determination of all disputes, that may arise between persons claim- ing under New-Hampshire or Massachusetts-Bay. on the one, and New- York on the other part, but each case must be determined according to its particular merits,
RESOLVED THEREFORE, That in all cases of disputes, arising between persons claiming under New-Hampshire or Massachusetts-Bay on the one and New- York on the other part, for the same lands, (besides confirming such possessions as were made under New-Hampshire or Massachusetts- Bay, prior to any grants for the same under New- York) the legislature
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will submit the determination thereof, to such persons as the Congress of the United States, shall select or appoint for that purpose, to be de- termined according to equity and justice, without adhering to the strict rules of law.
PROVIDED ALWAYS, That nothing in these overtures contained, shall deprive any persons actually possessing lands under New- York, of the lands so by them severally actually possessed: but such persons shall be confirmed in their respective possessions.
RESOLVED, That nothing contained, either in the above mentioned or these resolutions, shall be construed to affect any disputes that may arise between any person independent of a claim under New-Hampshire or Massachusetts-Bay, on the one, and New York on the other part.
RESOLVED, That all persons shall be entitled to the benefit of the above-mentioned, and these resolutions, notwithstanding they may have withheld their allegiance from, and been in opposition to the govern- ment of this state since the first day of May last,
PROVIDED, That no person shall be entitled to such benefit, who shall have committed treason against the state, by adhering to the king of Great-Britain.
AND WHEREAS the said Senate and Assembly of this state, by their concurrent resolution, passed also in this present session of the legisla- ture, have requested me to issue my proclamation, containing the sub- stance of their concurrent resolutions aforesaid; and have thereby also authorized me in such proclamation, to pledge the faith of the legisla- ture of this state, for the faithful performance of the several matters contained in their said concurrent resohitions,
NOW THEREFORE. I do by these present, publish and proclaim the concurrent resolutions of the Senate and Assembly aforesaid, above par- ticularly recited, hereby pledging the faith of the legislature of this state, for the faithful performance of the several matters therein con- tained; and I do hereby require all persons concerned, to take notice thereof, and govern themselves accordingly.
Given under my Hand und the Pricy Seal of said State, ut Poughkeepsie, on the Thirty-First Day of October, in the Third Year of the Indepen- dence of the said Stute, und in the Year of our Lord One Thousand Seven Hundred and Seventy-Eight.
GEORGE CLINTON.
By His Excellency's Command.
STEPHEN LUSH, P. Sec'ry. GOD SAVE THE PEOPLE."
IT is apprehended that what has been already animadverted on the first of these proclamations, amounts to a clear refutation of the essen- tial parts of both; especially to those who are acquainted with the cir- cumstances of the granting and settling those lands, but to the public in general, who are not, the answer is not sufficiently explanatory: we have therefore thought it expedient, to make some additional observations on the first of them, with a full answer to the latter, Inasmuch as the lead- ing gentlemen of the government of New- York, in both public and private company, when discussing on the controversy, do not hesitate, in the most positive manner, to affirm, and stake their honor, that their govern- ment have really offered (those deluded people) the inhabitants of Ver- mont, a full and authentic confirmation of their lands granted by New- Hampshire and Massachusetts Bay; but that they are, nevertheless, " re- fractory and licentiously disposed." The truth of this matter must be learnt from such part of the aforesaid proclamations called overtures,
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which is all that ever have been pretended to be made from that govern- ment to those inhabitants.
Governor Clinton's first proclamation begins with an air of penitence, pointing out a number of grievances, which he admits those inhabitants " have laboured under, which, in some measure, extenuate their offence, "and which ought to be redressed." This then is the point at issue, whether these overtures are calculated for that purpose, or are adequate to it, or not : or whether they were not rather calculated to deceive and insnare the people to whom they were made.
"That the said contest was occasioned, partly by the issuing of divers " interfering patents or grants, by the respective governments of New- " York, on the one part, and those of Massachusetts-Bay and New-Hamp- " shire, on the other, antecedent to the late establishment of the eastern " boundary of this state." 1
PREVIOUS to this establishment, which was in 1764, the government of New-York had granted but two small parcels of land in the now ter- ritory of Vermont, namely, the patent of Hoosick, in 1688,2 which is sup- posed to extend into the township of Pownal, and include five or six thousand acres of land in said town, which is situate in the southwest corner of the state of Vermont : and also the patent of Wallumscock, in 1739, is said to interfere with the townships of Shaftsbury and Benning- ton, including about five thousand acres of land; these are all the New York patents which interfered with the limits of Vermont, at the time of the settlement of their eastern boundary.
"And partly by a number of grants made under the late government of New- York, after the establishment of the said eastern boundary, which had been granted by the governments of New-Hampshire and Massachu- setts-Bay respectively, or one of them; in which the last mentioned grants by the late government of New- York, the interest of the servants of the crown, and of new adventurers, was, in many instances, contrary to justice and policy, preferred to the equitable claims for confirmation of those who had patented the lands under New-Hampshire or Massa- chusetts-Bay."-[From Gov. Clinton's proclamation of Feb. 23, 1778.]
This confession comes very near the truth, tho' in the sentence, " was, in many instances, contrary to justice and policy:" it should have been said, in every instance contrary to justice and policy. However, it in a great measure comprehends the main object of injustice on which the controversy arose, and consequently the main source of grievan- ces may be deduced from it.
THE government of New-Hampshire, previous to the settlement of the said boundary line, (and when those lands were universally supposed to be in that government) had granted one hundred and thirty-six townships six miles square, in the territory of the now state of Vermont. Previous to these grants under New-Hampshire, the government of the Massachu- setts-Bay had granted sundry tracts of land in the territory aforesaid, which in the settlement of the boundary line between them and New- Hampshire in 1739, fell within the jurisdiction of the latter, and was by them mostly confirmed to the original grantees under Massachusetts-Bay.
1 This is a quotation from Gov. Clinton's proclamation of Feb. 23, 1778, on which Allen proceeds to comment. He goes on in the same way with quotations and replies, without stating that the quotations are from the New York proclamations.
2 Printed 1765 in the text, but corrected in the margin,
31
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No sooner had the government of New- York obtained jurisdiction of the said territory, but they proceeded to re-grant the lands aforesaid to new adventurers, in prejudice to the grantees and actual settlers under New- Hampshire and Massachusetts-Bay: but remonstrances from them against the oppressions of the government of New- York, as mentioned aforesaid, procured the king's prohibition, which is as follows:
"At a Court at St. James's the 24th Day of July, 1767.
Present, the KING'S most Excellent Majesty,
Arch Bishop of Canterbury.
Earl of Shelburn,
Lord Chancellor,
Viscount Falmouth,
Duke of Queensbury,
Viscount Barrington,
Duke of Ancestor,
Viscount Clarke,
Lord Chamberlain,
Bishop of London,
Earl of Litchfield, Earl of Bristol, Hans Stanley, Esq.
Mr. Secretary Conway.
"His Majesty having taken the said report, riz. A report of the Lords of the Board of Trade, into consideration, was pleased with the advice of his privy council, to approve thereof, and doth hereby strictly charge, re- quire and command. that the Governor or Commander-in-Chief of his Majesty's Province of New- York, for the time being, do not, on pain of his Majesty's highest displeasure, presume to make any grant whatso- ever, of any part of the lands described in the said report. until his Maj- esty's further pleasure should be known concerning the same.
William Sharp.
A true copy, Attest GEO. BANYAR, Dep. Sec'y."
The government of New- York, in the face of this prohibition, presum- ed still to regrant the said lands included in the aforesaid one hundred and thirty-six townships till nearly the whole was circumscribed in the limits of their subsequent patents, except an inconsiderable number of townships near Connecticut-river. which, on condition of surrendering to them the original charters under New-Hampshire, were at the exorbitant fees of two thousand and three hundred Spanish milled dollars per each township granted to the original grantees under New-Hampshire again, with a reservation of a much higher quit-rent than what was reserved in the original grants under New-Hampshire. and at a very great expence obtained: And it is worthy of a remark, that the said interfering patents from New-York were mostly made after the said prohibition was certified to them.
" That an absolute and unconditional discharge and remission of all prosecutions, penalties, and forfeitures, under the above-mentioned act, shall be an established preliminary to such overtures."-[Quoted from Gov. Clinton's proclamation of Feb. 23. 1778.]
As the laws alluded to in the said act were temporary, and the term for their. continuing in force expired more than two years ; consequent- ly they were as tho' they had not been, in every sense, except that they intailed an eternal disgrace on the government of New-York for enact- ing them; which infamy hath been renued by the aforesaid proposal of a mock pardon; ushered in as an established preliminary to certain over- tures, which the present government of New- York were making to the citizens of Vermont. It seems they expected that this would be consid- ered as an eminent display of their goodness, and pave the way for their overtures which were equally empty and impertinent-the preliminary
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containing no pardon, and the overtures confirmed no lands; as the argu- ments previously published, and in this defence again exhibitted, will clearly evince, to which the reader is referred.
"THAT with respect to all such cases concerning the aforesaid contro- verted lands, as cannot be decided by the rules exhibitted in the aforego- ing articles, or some or one of them; the legislature of the state of New- York will provide for the determination of the same, according to the rules of justice and equity arising out of such cases respectively, without adhering to the strict rules of law."-[Quoted from Gov. Clinton's procla- mation of Feb. 23, 1778.]
FROM fifteen years acquaintance with the government of New-York, Vermont is by no means willing to trust this important controversy to their decision of justice and equity, as it has hitherto deviated from every idea of those rules of moral rectitude which are practised by virtuous governments; their notions of justice and equity seem to be unnatural and unjust; at least, every sample of it which they have as yet exhibitted to those inhabitants appears to be so; probably a habit of inslaving their subjects has beat it into their heads, that it is just; and thus people com- monly conceive it to be just to inslave negroes.
'Tis strange that the said legislature had not considered this difficulty which the said inhabitants labor under before they made the offer; for ยท though the legislature may, for all that can be objected to their former conduct, be really honestly disposed; yet such a belief could hardly ra- tionally be supposed to gain credit among a people who have suffered such flagrant and high handed oppressions from both the legislative and executive authority; and where it is the interest and very genius of the government, to inrich individuals on the tenantage, poverty and slavery of the great mass of their subjects, a little serious reflection might have determined them not to make such a proposal; and consequently, not have put us to the blush in answering the same. It is hoped that this freedom of writing will be excused, as we are obliged in this defence, to give our reasons for rejecting these overtures.
ACCORDING to the proposal of the aforesaid legislature, every inhab- itant in the contested territory would be liable to a trial at law for his land, in some way which the legislature shall provide, for the determin- ation of his title. Those inhabitants have spent too much money already in land trials at the New-York courts, but could never have the charters under which they held their land, so much as read in court.
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