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 58
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65
493
Appendix I.
tage to the settlers on those lands to be in the government of New- York: and, that the west banks of Connecticut-river was a good and cer- tain boundary, &c. These were undoubtedly the preponderating motives of determining the west banks of Connecticut-river to be the east boundary of New-York. and such arguments are utterly inconsis- tent with the notion of an " ancient indisputable right " of jurisdiction.
THERE is still another consideration which may be of moment in the observation of this. so trumpt up, " ANCIENT RIGHT OF JURISDICTION " of the province of New- York, to the lands in contest: If it be admitted a line should be drawn from the most northerly part of Connecticut-river to the most northerly extremity of Delaware-bay; still, it is by no means probable such line would inchide more than one half (if so much) of the lands in dispute so far as may be judged from the latitude and longitude of the respective objects: for considering the course of Connecticut-river, which is nearly from north to south. except towards its extremity: and the sea coast, from the river's mouth, together with Delaware-bay. form- ing also an indented line to the south of west: the land included in these limits. by a line drawn from Connecticut-river to Delaware-bay as afore- said, would (excepting the small promontory formed by the mouth of the bay and the ocean) lye in the figure of an obtuse angled triangle: and the course of the said line from the river to the bay. according to occu- lar survey, would be from the northeast a southwesterly direction; which very badly comports with the present north and westerly exer- cise of jurisdiction of the government of New- York, at Crown Point, Detroit. &c .- It may here well be observed, the settlers under New- Hampshire seem to be in a critical situation; every arbitrary measure under the present administration of the government of New-York is exercised against them: and provided they flee to the eastward to pro- cure inheritance, there they are fore-closed, the descriptive limits of the said ancient jurisdiction covers them, (to wit) the countries of St. Croix, Pemaquid, Kenebeque, Nantucket, Martin's Vineyard, &c .- Yet there is another large unknown country to the west and northwest, which has been but partly explored; and provided these people. instead of fleeing to the eastward. should turn their course to those countries: there, it is indisputable but that New- York would encircle them with another odd description of domain contained in their governor's commissions, i. e. " A. B. captain general governor and commander in chief in and over " the province of New- York." next follows the description hinted, "and " the territories depending thereon in America."
FROM the foregoing descriptions of the government of New- York, it appears they lay claim to so extensive a domain three different ways, or have three different modes or modifications in comprehending and en- grossing their progressive limits. As,
Istly. THE province of New-York which falls short of and termin- ates considerable south of the city of Albany.
2dly. " The territories depending thereon in America,"-These terri- tories comprehending such plantations, on extra-provincial land, as are and have been carried on adjoining to the province till its territories are at present extended to Detroit, and the neighbourhood thereof, &e.
3dly. THE limits of the duke of York's grant, and inasmuch as the grantees and settlers on the lands in dispute holl their title under New- Hampshire, and that government had for several years exercised their jurisdiction over those lands, even till 1764-Therefore in this case the government of New-York could not extend their territorial sort of ju- risdiction over the premises: for such sort of jurisdiction might be chal- lenged on the part of New-Hampshire (if it should be admitted at that time said premises were extra-provincial lands) and that with far the
494
Appendix I.
most propriety, inasmuch as that government had granted the land and began settlement thereon. Add to this the following clause in governor Wentworth's commission, which they viewed to be of great weight in this case, which, after describing the former limits of New-Hampshire, [added] "and from thence extending west till it meets with his majesty's other "governments." Add to this also, the reasons held forth in the chain of arguments, contained in the three first sections; all which were too po- tent for the New- York territorial sort of dominion to frustrate. At that juncture therefore, the lawyers, land-jobbers, politicians, &c., planned out the aforesaid three modes of jurisdiction. predicating it on the de- seriptive limits of the grant to the duke of York. And on this new moddled plan breathed an air of " ANCIENT AND INDISPUTABLE RIGHT OF" jurisdiction, and consequently to the fee of the lands in contest.
THE first intimation that ever saluted the ears of the public, asserting it to be the ancient right of the colony of New-York, to extend to Con- necticut-river as its eastern boundary, was discovered from a proclamation given under the hand of William Tryon, Esq; governor of the province of New-York, &e .. and dated the 11th day of December, 1771. His proc- lamation begins after the following manner: " Whereas it is the ancient "and incontestible right of this colony to extend to Connectient-river, as "its eastern boundary."
This was drawing a positive conchisive [conclusion] from fictions, [fic- titious,] and till that time. unheard of premises, and rather influenced people in the several governments, to purchase and settle under New- Hampshire, than diswade therefrom: for common fame and common sense were a barrier against the belief of this New-York doctrine, which from the time of the royal adjudication in 1764, was by the proclamation aforesaid, antidated to " ancient." That this doctrine till then was in- contested, is thought to be true; for it had but then peept to public con- sideration, and has ever since been contested.
SHOULD this their new hypothesis be admitted, yet. as hath been be- fore observed, these limits could include but part of said lands, according to the best judgment that can be formed without an actual and accurate survey of the descriptive limits of said grant; which if the New- Yorkers can do and fairly demonstrate, to any able mathematicians, and compe- tant and impartial judges, that they have rightly ascertained those limits, it is engaged on the part of the claimants under New-Hampshire, that they shall yield up to the land-jobbers of Nec- York, their lands and la- bour: an object which undoubtedly would be grateful and pleasing to them: and which they have many years been in pursuit of, and have hitherto had the mortification to be baffled. It is very incumbant on the government of New- York, in order to found title to those lands on this new scheme.
FIRSTLY, to ascertain the limits of their imaginary bounds. This the claimants under New-Hampshire, will expect compleated, or to hear no more of those " ANCIENT AND INCONTESTIBLE" boundaries of New- York.
SECTION V.
T `HE general assembly of the colony of New- York, in their state of the right of that colony. &c., page 3d, wave the right of the English by first discovery, as being foreign to their purpose, and that the Dutch pos- sessions are only material to be supported; and claim no further right by way of the Dutch, but priority of possession. Yet in the same page in- form, "when the first war between England and Holland became inevit- "able, king Charles the second, by letters patent dated the 12th day of
495
Appendix I.
" March, 1663-4, granted to his brother the duke of York the tracts of " country, which comprehended New- York. To render this gift effectual, " before the war was proclaimed, a fleet and land forces were sent out to " remove the Dutch and put the duke in possession." The circumstances that attended the making this grant, and sending the armament to render it effectual, is a sufficient reason to determine that the government at home, at that time, viewed the Dutch settlement as an intrusion. and possession (which is all they rely on) gained by trespass, in legal con- struction, is no possession at all. That the English had prior right to all the countries from forty to forty-eight degrees of north latitude, by vir- tue not only of discovery by Sebastian Cabot, and others, but by being in actual possession of several parts of the premises, is matter too well known to be disputed.
WHETHER there was real seisin in the crown or not at the time of granting these countries, is not truely in question; since every grant so made is incontestibly valid against the king, his heirs and successors; and the colony of New- York being entirely dependant on the crown of Great-Britain for their title, priority of charter is therefore necessary to be determined.
THE grant of king James the first to the council of Plymouth, bearing date at Westminster, the 13th day of November, in the eighteenth year of his reign, comprehends all the lands, islands, &e., from forty to forty- eight degrees of north latitude, through the main land from sea to sea. "On the 19th day of March 1628, the council of Plymouth under their "common seal, did grant to Sir Henry Roswell, Sir John Young. and "others, their heirs and associates forever, all that part of america lying " between the great river there, commonly called Monomack, alias Mer- "imack, and Charles river, within the space of three miles to the north- " ward of the same river, called Monomack, alias Merimack, or to the " nothward of any or every part thereof, and in length and longitude of "and within all the breadth aforesaid, throughout the main lands there, " from the Atlantic or western sea or ocean on the east part, to the South " sea on the west part."
This deed of sale at the suit of the grantees, with a charter of incor- poration, was granted and confirmed by king Charles the first, the 4th day of March 1629, wherein the limits are exactly the same with those in the Plymouth conveyance; and the proviso of Charles, that the actual settlement of the subjects of other christian states [was] to determine the extent, the same as was the proviso in James's grant to the Plymouth company.
THIS same charter of incorporation was adjudged void in the high court of chancery of England in 1684; from which the assembly of New- York in their state, &c., page 5th, take occasion to say " the title of that colony " now solely depends on their new charter of 1691." Nevertheless, the right of soil to all and every part of the deed of sale aforesaid, remained indefeasible; for, only animadvert back to the Plymouth conveyance, and observe, that the right in fee, was by them conveyed to the grantees; and trace it to king Charles's charter of incorporation, which only vested the grantees with powers of government. Though it is true, this charter contains all the formality necessary in the conveyance of the fee; yet is, so far as respects the fee, no more than a duplicate of what was before granted, which neither adds nor deminisheth; and it is easy to see, that the court of chancery could not vacate or make void, at most, any thing more than those incorporate privileges; and likewise as easily discernable that nothing more was attempted. Thus the colony of the Massachusetts still hold their right in fee, by conveyance of king James to the council of Plymouth, who were their grantors.
496
Appendix I.
IN the next place it may be observed, that in 1691 the privileges of in- corporation were restored; tho' our authors in their state &c. endeavor to curtail the colony of the Massachusetts, by construing their last char- ter to extend no further west than the east limit of the colony of Con- necticut. Their words are these, " these words (as far as) being in the "ease of the grant of the crown on the suit of the party, in legal con- " struction, carry the Massachusetts-bay colony no farther westward than "till it meets the colony of Connecticut, and not to Connecticut-river. "and much less to the westward of it." Be these bold assertions as they will, and provided it be here admitted, for argument sake. that the powers of jurisdiction of the province of the Massachusetts-bay be ever so much curtailed, yet one proposition we can verily be assured of, viz. That it is not in the power of king or chancery to curtail or deprive them of their property.
IT is to be further observed, that however our authors may criticise upon the gramatical or legal construction of selected words or phrases; yet, a little attention to the following real facts, will clearly point out the inconsisteney of such sophisms.
FIRSTLY, Connecticut charter, granted by king CHARLES the second, the 23d day of April 1662, was bounded and extended in length, by and with the Massachusetts first charter, granted by king CHARLES the first, the 4th day of March 1629, which incontestibly extended agreeable with the aforesaid descriptive limits of the deed of sale from the council of Plymouth to sir Henry Roswell, sir John Young, &c. and extended through the main land in longitude to the south sea on the west part.
THIS charter, as above, being nullified in the high court of chancery of England in 1684, and restored again in 1691, wherein the west extent is predicated by that of Connecticut, and this west limit of Connecticut being predicated by the old charter of the Massachusetts-bay, and express- ly extending in longitude to the South sea on the west part, exactly ex- tends the present charter of the Massachusetts-bay, with its powers of jurisdiction, to all and every part of the limits of the oldl nulled charter. This is the natural and legal sense of the present charter of the colony of the Massachusetts-bay. predicated on undeniable facts.
IN the next place 'tis necessary to consider the charter of Connecticut, which our authors inform should not extend west of Connecticut-river, in the words following: "This being a crown grant on the suit and peti- "tion of the grantees, is to be taken most beneficially for the king. The " descriptive words, and the intention of the grant, will in legal con- " struction be satisfied by giving the colony the same length as the Mas- " sachusetts-bay ; and it is plain both from the recital and the saving " clause in the Plymouth patent, on which the Massachusetts's title was "founded. that the latter cou'd not in any sense, extend to the westward "of Connecticut-river." As this their assertion is founded on the hipoth- esis of Connecticut charter's being predicated on that of the Massachu- setts's, and therefore the arguments before exhibited on that head, are equally conelusive for the establishing the western extent of Connecticut, nothing more is necessary for that purpose, but a recital of the descrip- tive words of their charter. granted subsequent to their purchase from the council of Plymouth by king CHARLES the second, the 23d day of April 1662, " bounded on the east by Narragansett-river, commonly called " Narragansett-bay, where the said river talleth into [the] sea; and on " the north by the line of the Massachusetts plantation; and on the sea, "and in longitude as the line of the Massachusetts colony, running from "east to west: that is to say, from the said Narragansett-bay on the east, " to the South sea on the west part." Thus it appears, and [not] only by the demonstrations aforesaid, but from the express words of the de-
497
Appendix I.
scriptive limits of the charter itself, which cannot admit of a double meaning, (curious as our authors be in the art of playing with words, they have not attempted to obviate their literal meaning.) that it is the unquestionable right of the colony of Connecticut to extend its western boundary to the South sea on the " west part;" and in this that colony agree, who are now challenging their right in fee to those limits, and ac- tually making plantations, as at Susquehannah, &c.
BY this time. undoubtedly queries will arise in the mind of the reader what will become of the grant to the duke of York, if the Massachusetts and Connecticut colonies extend "to the South sea on the west part?" The following intelligence from our authors will introduce an answer to this query; who, after describing said grant further inform in page 3d of the state, &c .- That "a fleet and land forces were sent to remove the " Dutch and put the duke in possession." Accordingly, on the 27th lay of August 1664, the Dutch governor Stuyvesant, surrendered by capitu- lation, all the countries the Dutch then possessed, to King CHARLES the second; when among other terms it was stipulated, "that all the people "shall remain free denizens, and shall enjoy their lands, houses, and " goods, wheresoever they are within this country, and dispose of them " as they please." Thus by conquest, the king became revested with his right to the lands conquered: for, as the king had antecedently disposed of the estate the crown was possessed of in these countries, to the colo- nies of Connecticut and the Massachusetts-bay; therefore his right now could not extend any further than the actual conquest, which. in legal construction, must be satisfied with, and can extend no further than the actual possessions described in the forementioned capitulation. A further information is in page 4th, "To remove any doubt of the valid- "ity of the duke's title, either from the want of seisin in the crown when it "originated, or on account of the intermediate conquest by the Dutch, "it was confirmed to his royal highness by further letters patent, dated "the 29th day of June 1674." That there was want of seisin in the crown at the time of first granting, is incontestible: for, as above said. the king by antecedent grants had divested the crown of its right, and by this conquest became revested: So that from this, occasion will be taken to say, that in fact the province of New- York was originally founded on conquest, and the limits of it, as before mentioned, circumscribed by the Dutch possession pointed out in the terms of capitulation. However unfavorable this conclusion may be thought on the part of New- York, yet, as the crown had, prior to either of the duke's grants, disposed of its right to the Massachusetts and Connecticut colonies-if it was not thus founded on conquest, it hath no foundation at all; and its having any place for existence, is but an "intrusion on the rights" of those other colonies. Furthermore, it is mysterious and contradictory. admitted that that government was thus founded, to suppose the duke could be lord proprietor; inasmuch as by the conditions of capitulation, the fee then acquired to the crown, passed to the Dutch inhabitants, who then became English subjects.
THOUGH this tract of land now in contest, was contained in the origi- nal grant to the council of Plymouth, yet as they never made any con- veyance of it, therefore it reverted to the crown on the surrender of that grant, the 7th day of June, 1635. From which it may be objected. on the part of New- York, that the above conciseness in the circumscription of the boundaries of their colonies is too great; for, that the grant to the duke must hold good where the crown, at the time of granting, was vested with a right to the lands granted. In answer. it has been argued in the preceding section, that it is very uncertain whether the limits of the duke of York's grant included this fract of land, or if any, how
498
Appendix I.
great a part ; and that the limits of said grant cou'd not be ascertained -and that governmental jurisdiction, and property, cou'd not be predi- cated on such obsolete and uncertain bounds. It was also demonstrated in the first section, and will be further observed in this, that the duke of York's grant reverted to the crown, and that the landholders in the gov- ernment of New- York hold under the crown. and that, if it did not re- vert to the crown, the fee is still in the duke, his heirs and assigns, and no landholders in the government are vested with the fee of the lands they possess, &c .* It would be too tedious as well as needless to recite the arguments that have been offered in the three first sections, which is humbly conceived are abundantly sufficient to answer the aforesaid objection, and fairly demonstrate priority of title to be in favor of New- Hampshire; to which the curteous reader is referred for a consideration.
As has been before observed, the design of the duke of York's grant was to include the Dutch possessions; or in other words, that it never was valid any further than to such possession, which, by conquest, reverted to the crown; and no farther than these limits, to interfere with the char- ter colonies of the Massachusetts and Connecticut. And as a twenty miles line to the eastward from Hudson's river would include the most eastern extent of the afore-mentioned possessions, [this is ] the reason why such a line was agreed to as the boundary between the colonies of Con- necticut and New- York: But. as these possessions to the northward of Connecticut, fell far short of this twenty mile line, or were so inconsider- able and uncertain as not to come within the capitulation reserve, therefore the Massachusetts colony contended with New-York for a further western extent than twenty miles east from Hudson's river: but the restless government of New-York, ever uneasy within its own boundaries, presumed, unrelenting, to intrude on, and contesting for the just rights of the Massachusetts, by extending their patents far to the eastward of twenty miles from Hudson's river: in consequence of which the greatest disturbances have arisen between the inhabitants of the re- spective colonies, and sundry of the conflicts so severe, that human blood spilt in the contest redened the hands of the intruders; but finally a boundary line was agreed to by the respective governments in 1773. at a twenty miles distance from Hudson's river, which has since been rati- fied by his majesty.
IN the state of the right. &e. page 4th, is the most extraordinary ac- count of alienation of property that is to be found in the annals of his- tory. "The duke continued proprietor and chief governor of this pro- " vince till he ascended the throne, when his right merged in the royal "authority, on his abdication it passed to king Willium. His successor, as "lord proprietor and royal sovereign." That upon the duke's accession to the throne his right of government merged in the royal authority will not be denied, but, that his right in fee consequently passed to king William as his successor, wants greater proof than a bare assertion; our authors should have explained this matter; "tis taken for granted they will not pretend that king William was heir at law to the duke's estate; and they mention no conveyance from the duke to the king. but say the "duke's right merged in the royal authority;" to suppose it is possible that right should pass to king William, as lord proprietor, is so great an absurdity that it wants a name.
IN the same page they further inform, that "in the duke of York's "commissions to his several lieutenant governors. Major Edmond An- "dross on the first day of July. 1674, and Colonel Thomas Dongan on the
* This argument and conclusion is founded on the New York hypothesis, exclusive of the herein mentioned article in the Dutch capitulation.
499
Appendix I.
"30th day of September, 1682, among other description of the boundaries "of this province are expressly comprehended all the land from the " west side of Connecticut river to the east side of Delaware bay." Note, those commissions were from the duke before he ascended the throne; undoubtedly in his commissions to his lieutenant governors, he had ref- erence to the limits of his grant, to determine their boundaries; but after his abdication, and the accession of king William and queen Mary, we find a commission from their majestys to Henry Slaughter, to be materially different. "King William and queen Mary, by their commis- " sion, dated the fourth day of January, in the first year of their reign, "appointed Henry Slaughter, to be governor of the province of New- " York, and the territories depending thereon in America." The same assembly (stiled our authors) further inform, that "in all subsequent "acts and commissions this colony is described by the same words, the " province of New- York, and the territories depending thereon in Amer- "ica." No arguments need be used to prove, for it is self-evident, their majestys had some different idea of the province of New- York, than what had been before described by the duke's commissions to his lieu- tenant governors, and a little attention to the original state of that gov- ernment, will explain that difference. Our authors further inform, page 17th, "The Rensselaer family are not indebted to the government of " New-York for their estate, they continue to enjoy it by an act of jus- "tice and not of favor; it was originally a Dutch colony of itself. granted " to their ancestors by the Dutch West-India company, who held it as a " part of New-Netherlands, under the states general. On the surrender " in 1664, their rights were secured to them in common with the rest " of the inhabitants, by the before-mentioned article of capitulation "granted on the surrender of the country, by Col. Nichols, the com- "mander in chief under the crown, and lieut. governor under the "duke: the faith of government was pledged for their security, and "their estates were confirmed under the seal of this colony in the year " 1685, not by the meer act of the provincial governor and council, but " by an express order of king James the second." They further inform, page 5th, "So long ago as the year 1685, king James the second, by "letters patent under that seal granted to the Runsselaer family the "manor Renselaerwyck, extended from Hudson's river both on the east "and west sides twenty-four miles." This manor includes the city of Albany, and extends near twenty miles to the southward of it; south of which terminates the province of New- York. expressed in their goy- ernor's commissions, so that this manor is included in their second de- scription of domain, viz. "the territories depending thereon." and ex- clusive of this clause in the commissions, antecedent to the fore-mell- tioned determination in 1764, the governors of New- York con'd not ex- ercise jurisdiction even in the manor of Renselgerwyck, and much less to the northward of it, as settlements which lay contiguons to those lim- its seemed necessarily to fall under the jurisdiction of that government. Thus their territorial sort of dominion hath been extended, without any prescription or limitation, agreeable to the observation of their cole- brated judge Smith, who, speaking of that government, said "it might well be accounted unlimited."
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.