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 57
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FROM what has been already elucidated it appears, that the adminis- tration of Great-Britain had adjudged in 1739 and confirmed in 1755, that the government of New Hampshire extended westward of Connecticut- river, and that this was the general sense of the nation (till ascertained as aforesaid) is real matter of fact. - True no determination of his maj- esty or reports of the lords of trade had before particularized how far the government of New-Hampshire should extend west of Connecticut- river: but such determinations of theirs mightily strengthened the com- mon opinion, nay, fully confirmed it, that that government extended westward to a twenty miles distance east from Hudson's river. This was the opinion of both king and subjects at the time the government of New-Hampshire granted those lands; and adventurers could not con- ceive of any intermediate boundary in one place more than another, between Connecticut-river and the twenty mile limit aforesaid; nor had they any apprehension that the government of New-Hampshire would extend to the westward of that limit. This twenty mile line took uni- versal and deep impression on the minds of geographers, and was the understanding of the British empire, and was thus portrayed in all for- mer maps. The certainty of this general opinion may be further illus- trated from the consideration that none of the British subjects applied to the government of New- York for grants of those lands, till after the alteration of jurisdiction in 1764, except it be, as is pretended by the New- York seribblers, that their government extended patents from within the said twenty mile line across the same, and on some part of the premises in dispute, many years before the government of New- Hampshire granted those lands-which will be hereafter considered : But, would further add, it is matter of dispute whether the administra- tion at home would recognize those patents granted by the government of New-York, on the premises aforesaid; though antecedent to those granted by New-Hampshire, inasmuch as the royal adjudication, in 1764, could not antecedently impower the government of New-York to grant
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them lands, which by royal adjudication of the line of jurisdiction be- tween New-Hampshire and Massachusetts-Bay, fell within the govern- ment of New-Hampshire in 1739, as aforesaid. However, for argument only, we will suppose the governments of Neir-Hampshire and New- York had each of them equal authority to grant those lands-then on this stating the case, prior granting would of consequence be priority of title. The first conveyance, upon this hypothesis, being good and valid both in law and equity. must necessarily defeat any subsequent grant from the crown or its representatives, being as authentic, to all intents and pur- poses, as any conveyance of the fee of land from the crown can possibly be .- Thus it appears upon this most favorable concession to those on the part of New- York, that the argument preponderates in favor of the claim- ants under New-Hampshire, as their grants are prior to those of New- York, (except in the instances of the old patents, yet to be considered.)
FURTHERMORE, it appears by the express words of the New-Hamp- shire grants, that the grantees were not only entitled to the fee of the lands therein described, but also to all the enfranchisements, and each and every of the privileges and immunities that by law his majesty's subjects in the province of New-Hampshire enjoy; so that at the same time the grantees were vested with the fee of the land, they were en- franchised with, and entitled to all the privileges and immunities con- tained in their charters; as the holding of fairs, choosing town officers, and making and mending their own roads, &c. It is therefore humbly conceived, that provided it should be the future pleasure of his majesty, to continue the said lands in the jurisdiction of New- York, (which by the settlers aforesaid is hoped will not be the case) that the claimants and settlers under the said grants, will nevertheless have his majesty's gra- cious approbation to enjoy without let or molestation, the privileges of incorporation therein contained; the grantees having ever considered those privileges as inseperably connected with the grant of the fee- simple.
SECTION III.
F ROM the facts and reasons that have been advanced in the foregoing sections, it manifestly appears, that the title of the claimants under New-Hampshire to the lands in question is indefeasible; yet still there are sundry considerations that may serve more abundantly to confirm and establish this title beyond hesitation. As,
FIRSTLY, The far great part of the extent of jurisdiction of the prov- ince of New-York, and great part of New-Hampshire, depended entirely on his majesty's pleasure, being wholly in the arbitration of the crown, to be either curtailed or extended. The real grant on which the original circumference of the government of New-Hampshire founded, ex- tended but sixty miles from the sea into the country, to the westward, terminating about twenty miles east of Connecticut-river. This govern- ment was afterwards enlarged by his majesty's commission to Benning Wentworth, Esq; governor of that province, directing it to extend to the westward until it should meet with his majesty's other governments. Which clause of western extention in the said commission, as well as the royal adjudication of the boundary line between this government and the Massachusetts-Bay in 1739, and report of the lords of trade in 1755, and many other arguments mentioned in this and the foregoing sections, all on the part of New-Hampshire, amount to sufficient evidence that their government extended so far west as twenty mites cast of Hud- son's river. And with respect to the province of New- York, its original
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northern circumference terminated south of the city of Albany, and afterwards, as plantations are [were] extended northerly, either on pa- tents procured immediately from the crown or government, or meer set- tlements on extra-provincial lands, commissions from the king to the respective governors were enlarged, as in the example following, viz. 'A. M. Esq; captain general, governor and commander in chief in and over the province of New-York, (then follows the enlargement,) and the territories depending thereon in America.'-These territories are that extention of jurisdiction beyond their first circumscribed limits, termin- ating south of Albany, called the province. This territorial extension of jurisdiction is altogether in the arbitration of the crown to curtail or extend as before represented. This being the case, the respective gov- ernors ean no other way be judges of the extent of their jurisdiction, but by directions given them in their commissions, together with his majesty's express proclamations, and public determinations relative thereto, as in the instance of the royal adjudication in 1764; a publica- tion of which by his majesty's order, gave his subjects to understand, that it was his pleasure that the territorial jurisdiction of New-York should extend to the west banks of Connecticut-river, which includes the disputed premises within that government. Before this it was impossi- ble for the subjects to know it; if they could have understood it without his majesty's proclamation certifying the same, such proclamation would have been needless and impertinent. The truth of the matter is, his majesty, in 1739, determined New-Hampshire government should cover the present disputed premises ; he altered his determination in 1764, whereby New-York extended its territories over the same land. And the king has an undoubted right to alter and regulate the jurisdiction of royal governments as may seem to him mete, so long as his royal power exists ; and for New-Yorkers to amuse people of common sense, pretending that it is the ancient and indisputable right of the colony of New- York to extend to the west banks of Connecticut-river, as its eastern boundary, is the very height of folly. It was in the nature of things absolutely impossible his majesty himself should have known that to have been the case the moment before he determined it, and equally inconsistent that the subjects should know it before his majesty pro- claimed it.
FURTHERMORE, it appears by the representation which was laid be- fore his majesty by Lieutenant governor Colden, as an inducement to prefix the west banks of Connecticut-river [as] the eastern boundary of the province of New-York-That they were arguments of conveniency, holding up to view that it would be greatly to the advantage of the in- habitants on the New-Hampshire grants to be under the jurisdiction of New- York; which arguments are incompatible with the idea of antece- dent right of jurisdiction. Likewise, from hence we may see the incon- sisteney of that government or its patentees, in founding their right in fee to the lands in contest, by virtue of the said royal adjudication of the bound- ary line on the west banks of Connecticut-river; inasmuch as it cannot operate to their advantage antecedent to the date of that adjudication, and afterward cannot be considered any thing more than a mere line of jurisdiction between the respective governments.
IT should be furthermore considered, that neither governments were vested with the fee of those lands; their case, in this respect, is quite the reverse of that of proprietary governments, who have a right to ap- propriate the soil. In royal governments, it is true, the governors have a delegated authority from his majesty to grant crown lands; and in such governments it is a prerogative of the crown to alter the limits of jurisdiction; his majesty hath a right to re-annex the disputed premises
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to his province of New-Hampshire, (in which it formerly was, and on the faith of which the claimants under that government purchased and set- tled the same lands.) or incorporate it into a new government, or con- tinue it under the present jurisdiction, as his royal wisdom may discern to be best for the governed : But, upon such alterations of jurisdiction. private property is never changed or subverted. For, if the property of the subject be in the arbitration of the crown, and liable to the same vicissitudes and changes with jurisdiction, this would destroy the very nature of property, and would render a king absolute, and despotic. which is perfectly inconsistent with the constitution of the kingdom .- Therefore, to convey or alienate property, is the sacred prerogative of the rightful owner .- Kings and governors (in the kingdom of Great- Britain) cannot intermeddle therewith. There is indeed as much differ- ence between the change of jurisdiction, and transfering the property of the subject, as there is between light and darkness, although since the said royal adjudication in 1764, the New-Yorkers have endeavored to blend them together to answer sinister and lucrative purposes .- They were sensible, undoubtedly, that such the aforesaid arguments were con- clusive against their monopolizing the fee-simple of said lands; and as it is very common for people, who are upon a design of engrossing the property of their neighbour, to set up some specious pretence of right, to vindicate themselves from the imputation of dishonor and reproach; so in the present case, the New-Yorkers endeavored to draw the curtain of the duke of York over their knavery, and under the feigned character of heirs, to that apostate duke, claim the lands aforesaid, and fancy themselves the owners of towns, (fields) and houses that they builded not.
SECTION IV.
A! LTHOUGH the arguments contained in the foregoing sections are full and conclusive, relative to the nullity and nothingness of the duke of York's grant, at least such part thereof as concerns the present dis- pute : and that neither the government of New-York or its patentees gain any manner of title to the land in contest, by predicating it on the validity of that grant, yet the general assembly of the said province in their state of the rights. &c. venture the stress of their whole canse thereon, and deduce all their arguments of title to those disputed prem- ises therefrom: It is therefore partly out of compliment to them, as well as more fully to invalidate, and apparently demonstrate, to every capable judge, the utter insufficiency and defeat of title to those lands. by con- veyance from the government of New-York, that the grant of [to] the duke of York is here brought under consideration: and in order thereto, it is necessary that the second grant be here inserted, which is tran- scribed from the New-York pamphlet verbatim.
" EXTRACT of King CHARLES the Second's Grant of the Province " of New-York, to his Brother JAMES, Duke of York.
‘C HARLES the second, by the grace of God, King of England, Scot- land, France and Ireland, defender of the faith, &c. To all to " whom these presents shall come, greeting: Know ye that we, for divers " good causes and considerations, have, of our especial grace, certain " knowledge and mere motion, given and granted, and by these presents, " for us, our heirs and successors, do give and grant unto our dearest " brother, James, duke of York, his heirs and assigns, all that part of the " main land of New-England, beginning at a certain place, called or " known by the name of St. Croix, next adjoining to New-Scotland in
33
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" America; and from thence extending along the sea coast, unto a cer- "tain place called Petuaguine or Pemaquid, and so up the river thereof " to the furtherest head of the same, as it tendeth northwards; and ex- " tending from the river of Kenebeque, and so upwards by the shortest " course of the river Canada northwards: And all that island or islands, " commonly called by the several name or names of Matowacks or Long- " Island, situate and being towards the west of Cape-Cod; and the Nar- " row Highgansetts, abutting upon the main land; between the two riv- "ers there called or known by the several names of Connecticut and " Hudson's-river. together also with the said river called Hudson's, and " all the lands from the west side of Connecticut-river, to the east side of " Delaware bay: and also, all those several islands, called or known by " the name of Martin's [Martha's] Vineyard. and Nantuckes, otherways " Nantucket; together with all. &c. Dated the twenty-ninth day of June, "in the twenty-sixth year of the reign of king CHARLES the second."
IT appears from the sequel of the representations, narratives and ar- guments contained in the New- York pamphlet, that the government of New- York do not pretend to any conveyance of the fee of the lands in contest from the duke of York. But their grand hypothesis is, that the jurisdiction of their government from the first establishment, was pred- icated on, and bonnded by the descriptive limits of the said grant; and consequently. that the disputed premises was never in the government of New-Hampshire; and, that that government never was vested with authority to grant those lands, and also consequently, that the grants by them made, are in their own nature void. This is the sum of the New- York arguments relative to their title to those lands. Here
FIRST, it is necessary the descriptive limits of the above rehearsed charter be brought under consideration: which includes the countries of St. Croix, adjoining New-Scotland. Pemaquid, the river Kenebeque, and the islands known by the name of Martin's Vineyard, Nantucket, &c. All these countries lying east of Connecticut-river. and within the actual jurisdiction of the provinces of the Massachusetts-Bay, New-Hampshire, &c. and at present not contended for on the part of New-York. Their general assembly, in the " state of the right," &c. had done well to have informed the public, whether their " ancient and indisputable right " of jurisdiction extended to every part of the descriptive limits of the grants aforesaid. and if not, to which part it was circumscribed ; and when done, and by what authority; whether their governors' commissioners. [commissions.] at any time, particularized and determined to what part of the limits of the said duke's grant their jurisdiction should extend more than another, or to the whole; or, whether any royal edict or proc- lamation, had ever thus given them such predicated limits of jurisdic- diction: this is absolutely necessary for them to do, in support of their title to the lands in question. And furthermore. it is requisite for them to demonstrate that those lands were actually contained in such their former limits of jurisdiction: but, if the government of New- York, from royal determination. cannot extend jurisdiction to any one part of the descriptive limits of the grant aforesaid. more than to another; then, on this hypothesis, their jurisdiction includes the whole limits contained in the grant, or none at all: that it includes the whole, will not be pre- tended, and that any party, as predicated on them limits, cannot be made to appear: but on the contrary, it appears his majesty apd council had no reference to any part of the limits of this grant. in determining the boundaries of the jurisdiction of New- York in 1764, as may appear from the royal order isself, an extraet of which is as follows: " His majesty " with the advice of his privy council, doth order and declare. That the
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" west banks of the river Connecticut, from whence it enfers the prov- " ince of the Massachusetts-Bay, as far north as the forty-fifth degree of " northern latitude, to be the boundary between the said two provinces." That parallel of latitude is also established its northern boundary. The source of Connecticut-river is supposed to be something to the northward of latitude forty-five, and comes much from the north-east, a consid- erable distance after it passes that latitude; but it is notorious, that the source of Hudson's river is far south of it; so that by comparing the de- scriptive limits of the duke of York's grant. with those expressed in the royal order, they will be found to be materially different. The limit of that part of the duke's grant which respects the present arguments, is in the words following: "Together also with the said river called Hudson's "river, and all the lands from the west side of Connecticut-river to the " east side of Delaware-bay;" which limit, in any possible construction of it, can include but part of the disputed premises, (which said prem- ises extend and are bounded on the forty-fifth degree of north latitude.) as will more fully appear in a further discussion of that line. But,
FIRST. it is manifest that the king and privy council, in determining the extent of the jurisdiction of the province of New- York, did not pro- ceed upon the idea of that government's having any antecedent right of jurisdiction to those lands. Had that been the ease, the royal order had been predicated on the boundary lines of the duke's grant aforesaid. and could not have comprehended any more land than " from the west " side of Connecticut-river to the east side of Delaware-bay:" and these bounds are so loose, vague, and indeterminate, that it is altogether im- possible to found a line of jurisdiction thereon, as will more abundantly appear by the following observations on the descriptive limits thereof, which may be seen at large in the fore part of this section. Therefore, such part only as is necessary for the consideration of the indetermin- ate bounds before spoken of, is here quoted; which, after describing the situation of Long-Island. and that it abuts upon the main land - between " the two rivers there called or known by the several names of Connec- " ticut and Hudson's river," begins the description under consideration. " together with the said river called Hudson's river." Observe, that as the description of this river is not immediately connected with any fore- going or following discriptions in said grant; nothing more can possibly be included in it. but a discription of the river only, exclusive of one foot of land on either side. The second discription " and all the land " from the west side of Connecticut-river to the east side of Delaware- " bay." The best mathematition on earth cannot ascertain these limits, except upon arbitrary principles, as there can be no prefixed place on Connecticut-river where to ereet the first bounds; and as to any particu- lar place on the " east side of Delaware-bay," where to erect a second, is altogether undetermined in this discription : But, inasmuch as it in- cludes all the land from the west side of Connecticut-river, &c. there is a little better foundation to establish the first bounds than the second. It seems in order to include all as aforesaid, it would be necessary to ex- tend either to the head of the river, or to the most northerly extention of the whole stream, to make the first bounds: and provided this imag- inary bounds should extend north of the forty-fifth degree of northern latitude, it would so far exceed the settlement of the line in 1764. Be this as it will, the most northerly part of the river, which would most likely be the head, would be the most favorable on the part of New- York, for to establish a first bounds, and from thence to extend a straight line to some place on the east side of Delaware-bay; this is something of a natural construction. on the undeterminate descriptive limits aforesaid, without exploring Connecticut-river, which in this case is necessary.
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And, first, in tracing said river to its source, it is found towards its ex- tremity, to come much out of the northeast. This being the case, a straight line from its head to Delaware-bay, would cross said river and include a large tract of land on the east side, and perhaps cross the river sundry times. The consequences may be drawn thus, that where the line may be supposed to cross the last time ought to be the first real north boundary of the " ancient and indisputable " limit of jurisdiction of New-York. For, if the bounds at the head of the river before spoken of, be so established, it would include considerable land on the east side of the river, within the old boundary of New-York, which is contrary to any idea to be gained from the descriptive limit aforesaid, viz. " and all " the land from the west side of Connecticut-river," &c. Still it may be queried whether there may not be another proposed first boundary bet- ter purporting [comporting] with the description of "and all the land " from the west side of Connecticut-river to the east side of Delaware- " bay," between the head of the river. and the place where the imagin- ary line was supposed to pass ? To this it may be answered, that a place between these two. so far up the river as in tracing a straight line from thence to Delaware-bay, would not cross the river, may better agree with the above description : Still, from none of these imagined lines, from the different imagined bounds, or from any other projected, possible, first bounds, can such a straight line be ascertained, till the place for the south-western boundary on the "east side of Delaware-bay " be estab- lished. And the vagueness of the descriptive limits is so great, that it cannot be determined whether that bounds shall be at the northern ex- tremity of the east side of Delaware-bay, or at the southern, where it communicates with the main ocean, or at any other intermediate place between these two: so, that from the uncertainty of the second bounds, it is impossible to establish the first, so as exactly to include "all the " land from the west side of the said river to the east side of said bay," and no more. And
THUS it is demonstrated from the vagueness, uncertainty and abso- luteness of the descriptive limits of the grant to the duke of York, be- fore quoted at large, that it is in the nature of things absolutely impos- sible to ascertain it. From hence follows a second necessary inference, viz. That it is equally impossible and contradictory, that governmental jurisdiction should be predicated thereon; for an ideal uncertain juris- diction, in its own nature incapable to be determined, is in reality none at all. And from hence follows a third inference which determines the sequel of the argument on the subject of property, concerning the lands in question, to be in favor of the claimants under New-Hampshire: For, it is in the last place equally contradictory and impossible, as in the case of the absurdity of ascertaining the limits of the pretended " ancient " jurisdiction of New-York, predicating it on vague and undeterminate boundaries, that, that government should predicate their right to the fee of lands by them thus unascertainable ; for as uncertainty and natu- ral impossibility of a jurisdiction's being rendered determinate makes it in reality to be none at all; so the idea of property, predicated thereon, is equally impertinent. True it is, by the royal determination in 1764, the east line of New-York extended to the west banks of Connecticut- river, which may be foundation for conjecture, that that limit might have reference to a description in the duke's grant aforesaid, "and all the " lands from the west side of Connecticut-river." &c. Yet when the rep- resentation made by lieut. governor Colden, to his majesty in council, as mentioned in this pamphlet, under the head of the narrative, &c. comes to be considered, it will reflect light on this point. The arguments made use of in the said representation were those of convenieney and advan-
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