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 59
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IT may be further offered in objection on the part of New York, that allowing the foregoing arguments relative to the territories, and that Renselaerwyck was, before the tera of the aforesaid determination, in fact annexed to the government by the territorial clause in the governor's commissions; yet, nevertheless the duke's grant must be valid to the northward of that manor, to all the lands it originally covered. This cannot operate in favor of New-York, for, in addition to what has been
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before argued to this purpose, the reader is desired to observe, that king James the second, who was this same duke of York, abdicated the throne in 1688. and his estate reverted to the crown of England, and this grant became vested in the crown. the same as though the duke or his grant had never had an existance .- Nor have any of their governors commis- sions, from Henry Slaughter, the first governor appointed by king Wil- liam and queen Mary. down to this present æra, ever been predicated on, or had the least reference to the limits of that grant.
SECTION VI.
THE government of New-York make the greatest outery against her sister colonies, taxing them with intrusion, violence and encroachment; and at the same time, are flagrantly more guilty of the same avaricious, unjust, and hostile wickedness than all the rest of the English America. Their capricious land-jobbers have a surprising faculty in carrying their points: at the same time they are encroaching upon their neighbors, provided they meet with opposition. they will cry out in the most exag- erating exclamations, violence, riot. treason &c. and at the same time, not hesitate to trample upon his majesty's authority, (the particulars of which may be seen in the preceding narrative.) They are great advo- entes for law, order, and good government; these are their horns of iron, and with them do they push the poor and needy, when they get them into their net. Their way is as the way of a serpent upon a rock, and it is dif- ficult to trace their footsteps. They complain of the lawless, factions, and riotous conduct of the settlers under New-Hampshire; yet know, that they themselves are the moving cause of all the disturbances they com- plain of. It is incredible to suppose a collection of farmers exposed to the perpetual fatigues and laborious toils of cultivating a wilderness coun- try, should under a just administration of law, become "a confederacy of insurgents." Was it only that natural presumption being so much in favor of those inhabitants. it is humbly conceived, that all wise and un- predjndiced persons, will, at least, suspend their judgments concerning them, till the New- Yorkers can clearly evince, that these people are in reality, without cause, tumultuous, disorderly, &c. And inasmuch as the facts of this controversy is so fully set forth in this treatise, the reader is thereto referred for a clearer exhibition.
OUR authors, in order to maintain their claim to the lands in contest, and if possible, to include it within one of the descriptive limits of the grant to [the] duke of York, tell us many strange things about the col- onies of Connecticut and the Massachusetts: that Connecticut "in legal construction" should not have extended to the westward of Connecticut- river, and that their settlements west of that river were an intrusion on the right of the colony of New-York; yet nevertheless for peace sake, and rather than contest with "a powerful neighbor," they settled with that colony at twenty miles distance from Hudson's river.
THEY further inform, that "the Massachusetts claim stands by no " means in so respectable a light as that of Connecticut," and in legal construction, should extend "no further westward than till it meets the " colony of Connecticut, and not to Connecticut-river, and much less to the " westward of it." Onr authors being men of great learning and sagae- ity, soon extended their ancient right of jurisdiction over such part of the Massachusetts colony as lay to the westward from Connecticut-river, and this their scheme in stopping the western extension of that colony where it meets Connecticut, may be reckoned as one among the greatest of their political atchievements. "And it is worthy a remark," that
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had the Massachusetts colony extended west to the South sea, it could not have met Connecticut, but must have extended parallel with it, in the same direction.
To give this pleasing scheme some kind of colour, they argue the nullity of the Massachusetts first charter; and introduce the duke of York's grant as the oldest title, page 5th,-"the Massachusetts charter "was vacated, and the title of that colony now solely depends on their "charter of 1691.
YET they allow, that that colony attained the right of soil from the council of Plymouth, and that the charter of king Charles dated the 4th day of March, 1628-9*, vested them with powers of government. (It's need- less to animadvert on these strange accounts) however, after they have charmed their imaginations with the fruitless idea of extending their ancient right to all that part of the Bay province west of Connecticut- river, they complain bitterly of the encroachments of the Massachusetts, page 8th,-"Under circumstances so favorable to the rights of this col- "ony, we have great reason to complain of the unwarrantable encroach- "ments under the authority of the government of the Massachusetts- "bay, by which a valuable traet extending from Connecticut-river, within "twenty miles of Hudson's river, has been wrested from us."
" THEIR conduct seems the more inexcusable, as they must have " known that such encroachments were not only disrespectful to his " majesty's authority, and big with great mischiefs and disorders, but " were highly injurious to private property, great part of these lands " having anciently been granted to his majesty's subjects under the great " seal of this colony."
THEN they proceed to recite their old grants, which they tell us " cover the country the whole breadth of the Massachusetts claim:" The manor of Renselaerwyck, granted in 1685, and extending twenty- four miles each side from Hudson's river; and Westonhook, in 1705, which extends about thirty miles from Hudson's river; and Hoosick, in 1685, which extends about thirty miles from the river. It seems to have been a political and universal principle with the government of New- York, to begin their patents within the twenty mile line, and extend them east- ward of it, that by this means they might have opportunity to encroach on, and jockey their neighbouring colonies more or less, out of their lands, as subsequent policy, intrigue and power would render prac- ticable.
THAT government, thus extended their patent into Connecticut, one in particular, into the township of Salisbury; and it has ever been their practice to wrangle till they find by experience, that neither by sophis- try, law, or hostility, they can maintain their exorbitant claims, and then capitulate on as good terms as they can; and conclude with branding their competitors with dishonesty, encroachment and many hard names, and don't scruple to impeach their governmental authority, (as in the case just recited of the Massachusetts-bay) with being disrespectful to his majesty's authority, and guilty of great mischiefs and disorders; although the authority of their own government, by their unjust, avari- cious encroachments on the Massachusetts even to Connecticut-river, laid the foundation of those disorders, and they might have added bloodshed: yet their assembly have the impudence to palm it all upon the authority of the Massachusetts.
THE claimants under New-Hampshire are so happy as to be almost exempted from any New- York claims, by patents from that government prior to theirs; the aforesaid Hoosick and Wallumscock patents being the
* This is the charter spoken of as vacated, which was done, as has been before largely treated or, in 1684.
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only ones of this nature. The former includes about one quarter of the township of Pownal, on which part were about four settlers, when it was granted by New-Hampshire. This township is bounded southerly by the north line of the Massachusetts-bay, and extends west as far as the Connecticut and Massachusetts colonies. The latter, i. e. Wallumscock patent, was granted under the common seal of the province of New- York, the 15th day of June, 1739. This patent is said to interfere with the township of Bennington, and it is matter of dispute, whether in its first location, it included more than about thirty or forty acres within that town, tho' it seems the patent by its descriptive limits, extends fur- ther into the town, and the patentees produce a map corresponding with those limits. This monument is well known by the Bennington people, and is on the western edge of the town; and there has never been a discovery of any lines of the survey of that location to the eastward of this monument. The many circumstances of this nature, amount to almost a certainty. that the patentees never made any actual location further interfering with Bennington, than as aforesaid : notwithstanding. as they have planned their patent, it includes about one eighth part of the town; which lands are exceeding good in nature, and are settled wholly under the New-Hampshire title, by industrious farmers, who from a wil- derness state, have cultivated and brought the most of it under good improvements, with many valuable houses, barns and orchards; some of them annually mowing at least eighty tons of hay, and raise other pro- duce of the country in proportion. Not the least improvements of pos- sessions were ever made in that town, except by these inhabitants; nei- ther had they the least knowledge of a pretence of any New- York pa- tents extending there till several years after they had settled the land. As has been before observed, there were about four settlers on that part ,of Hoosick patent, included in the township of Pownal. when it was granted; and if the author bas a right information, there has not been any more settlements made under the New- York title since, though there had sundry families settled on the premises included as aforesaid, under the New Hampshire title.
As the state and circumstances of such part of the townships afore- said as are included in the old patents, are materially different in many respects, from the circumstances of the Newr-Hampshire grants in gen- eral, it will therefore be necessary that this matter have a particular con- sideration; and that none of the aforesaid arguments be considered in this ease but what are truly applicable; and in this review of the case, it will be admitted, that the old Wallumscock patent ineludes such part of Bennington as the plan the patentees exhibit doth contain.
IT is taken for granted that the royal determination of the boundary line in 1764 could not extend the government of New-York antecedent to the date of that order, which was a manifestation of royal power, and which was the sole cause of that extention; therefore, at the time the gov- ernment of New- York granted the forementioned old patents, they could have no greater authority for so doing than what they were then in fact possessed of: It remains therefore to be considered, whether the patents from the government of New- York are valid or not, so far as they inter- fere with the townships of Bennington and Pornal. And firstly, it has been proved that the province of New-York as described in their gover- Dor's commissions, doth not extend so far north as the city of Albany; therefore the northern tracts of country which these patents of Hoosick and Wallumscock cover, must be considered as belonging to their second sort of domain, (to wit) the territories. It has also been shewn. that these territories are not circumscribed to any particular limits, but that they were originally meant to include some ancient grants that were in-
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dependent of the province and adjoining settlements, on extra-provin- cial lands: probably that government may have authority to grant land to the west and north-west, where it is indisputably unappropriated. and where the claim of none other government could interfere: but it will be insisted upon, on the part of the New-Hampshire settlers, which are in- eluded in the aforesaid old patents, that the government of New- York had no right to extend any of their patents to the eastward of a line equivalent to that which constitutes the bounds between New- York and the colony of Connecticut and Massachusetts. This limit was ever thought by the people in general of the colony of New- York, as well as those of the adjacent colonies, to be the eastern boundary of New- York. until the æra of the late determination, which extended it to the river Connecticut: and labouring men that support the world of mankind, are obliged to form their judgments of the jurisdiction of governments by the common received opinions of mankind they are conversant with: and even admitting they make an erroneous judgment, yet. in the pres- ent case, as the lands were of but little value, exclusive of their toil and cultivation, and as the farmers in reality uphold the state. it is therefore not only incumbent on the laws, but on the policy of the state to defend them in cases of this nature. - It must be admitted that where the limits of governments are clearly ascertained and notoriously known, that a far- mer trespassing in this manner on another's property. must bear the loss, But, provided a country of people be generally under a deception as to matters of jurisdiction, and purchase land and make great improve- ments, and all on a mistaken footing; men in such circumstances should be considered in the most favorable light. For. as not only individuals. but the country about them were in the same manner deceived, and therefore, at the time of purchasing and settlement, they were utterly destitute of the means of knowledge; yet, however. it is not conceded to, that those farmers on whose account the present arguments are ex- hibited: are under a deception about this matter; for of all sorts of gov- ernmental jurisdiction. the New-York territorial was the weakest. loos- est and most vague; it was rather occasional and political, than positive: and in its own nature almost or quite incapable of being extended faster than settlements were actually carried on. or at most the lands exposed to this territorial jurisdiction, should not be patented faster than his majesty's subjects are disposed forthwith to settle. The necessity of granting so fast may be pleaded on account of order-the policy of govern- ment may demand it; otherwise an occasional jurisdiction would be alto- gether unable to abilitate the government to make conveyance of the right in fee: although it is indisputable that such a jurisdiction in matters of meer government, is to all intents and purposes, equal to positive juris- diction; but with respect to having a power to convey the fee of lands, is matter of doubt : But thus much with propriety may be inferred, that a title so weak and impotent should not claim superiority over the least conception of title whatever; a meer possession is of itself abundantly sufficient to maintain the right in the possessor, and on a judicious trial at common law, (could such an one be had) would be adjudged para- mount to it.
THERE is another consideration that must totally extinguish and ob- literate all possible remaining idea of right that the patentees of Wal- lumscock may be supposed to have [to] the said tract of land included in the limits of the township of Bennington. Only advert to the date of that patent, which is on the 51th [15th] day of June 1739, and compare it with the time of the commencement of the settlement of Bennington. which was in the spring of the year 1760, and there will be found to be twenty-one years from the date of this patent, to the beginning of the
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settlement under New-Hampshire ;- in all this time there was not the least settlement or possession made in the premises ; although the ex- press condition of the patent was, that it should be settled in three years from the time of granting. Possibly in all that time the patentees might have got some Dutch tenants on some western part of the patent, which, with the government of New-York, may be denominated a ful- filment of the condition of settlement; many large tracts having been patented, some since and others longer ago than Wallumscock, which are yet mostly a howling wilderness. This practice of the government of New- York in extending their patents to the eastward of a twenty mile line from Hudson's river, hath ever been considered as a disingenious and designing policy in that government; thereby to lay a foundation for intruding on the rights of their neighbouring colonies ; and has been attended with many disagreeable consequences, as has been before ob- served. And as that government have given up their exorbitant claims where they interfered with the right of the Massachusetts. it would un- doubtedly be their wisest way to do the same with respect to such claims as interfere with the right granted under the great seal of the province of Nerr-Hampshire; and instead of treating the people that have settled those lands under that title, as rioters and felons, to exercise that justice and humanity towards them, which becometh governors to the gov- erned.
IT remains still. that there be a summary view exhibited, relative to the rule of right which should take place with respect to the settlers un- der each government, that are settled on such part of the forementioned patents as are included in the townships of Bennington and Pownal. And although superiority of title is in favor of those under New-Hamp- shire; nevertheless, as the line of jurisdiction in those times of granting and settlement, was not expressly ascertained or known. under these cir- cumstances, it would not only be bad state policy, but great inhumanity and injustice to the subject, for either the government of New-York or New-Hampshire to dispossess them, inasmuch as both challenge a legal right; therefore, either title sealed and confirmed with the sweat and toil of the farmer is abundantly paramount to the other.
OUR authors, in their appendix. page 19th, misrepresent the plea of the Bennington people, in saying, " To reason on their own principless if "equity confirmed the claims of others under New-Hampshire, on account "of priority of interfering grants, it would have afforded a fatal plea "against the people of Bennington: because they ought then themselves " to have yielded up all the lands which are covered by more ancient pat- " ents." The people of Bennington, or rather the claimants under New- Hampshire. have ever insisted, that at the time the government of Neu- Hampshire granted those lands they had good right to do so; but that New-York had not. This matter is illustrated and proved by many ar- guments, and real facts in this treatise, particularly in the 2d and 3d sections, to which the reader is referred. 'Tis true, provided the Ben- nington people had no further considerations in the matter of title, but the priority of interfering grants-according to this method of arguing, they ought to yield up such part of that town as interferes with Wal- lumscock patent: but the consideration of settlement is undoubtedly, with the many other matters, material to be considered, as argued afore- said.
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SECTION VII.
H AVING gone through with the remarks on the New-York pamphlet, so far as immediately respects the title of those lands which has been the principal cause of the publication of this treatise-shall nextly proceed to detect some notorious and dishonorable misrepresentations contained in the pamphlet aforesaid, particularly in the appendix. In this brief re- view, it would be too tedious, as well as needless, to trace the authors through all their disguised and fictitious representations, and intricate windings. Shall therefore pass on with noteing such of their exhibitions as are the most cruelly fallacious; among which the story of the exten- tion of the township of Bennington, merely by a vote of the inhabitants at a town meeting, to the westward from where it was intended to be granted, and within seventeen miles of Hudson's river. is the most flagrantly opprobrious. The story may be seen recorded in the 4th page ot their appendix. "The grantees of the township of Bennington, dis- " covered that the situation of the tract according to the intention of the "grant, would be both inconvenient and unprofitable, as it included a " large proportion of mountain; and they therefore, by no better author- " ity than a vote of town meeting, presumed to extend it to the westward " within seventeen miles of Hudson's river."
As this representation in all and every part is entirely groundless, and no pretence of proof to support it, but is the meer calumnious asertion of those who have an implacable hatred to the Bennington people, a posi- tive denial of the facts alledged would be sufficient refutation of those facts. Nevertheless as the assembly of New- York have made a principal engine of this infamous story of their own creation, to destroy the good character of the people aforesaid, by representing them to the govern- ment at home as the vilest of insurgents and outlaws-and inasmuch as the facts alledged are capable of disproof by mathematical certainty, and sundry demonstrations of this sort having been actually made, (though not with a view of disproving this calumny, as it had not then been pub- lished,) by admensuration of the distance from Hudson's river, to the westerly fine of Bennington, all which agree that it is at least twenty miles. Mr. Samuel Robinson for once made an actual mensuration of that distance, and found it to be twenty miles and thirty-tive chains; his affidavit and Mr. Ebenezer Wood's together with an attested copy of the survey of that town by Mr. Matthew Clesson, the surveyor, is thought expedient to transcribe in its following order, which will abundantly serve to exculpate the people of Bennington from that odium wherewith they have been branded. The author is furthermore especially directed by the inhabitants of that town, to request the government of New- York " to vindicate what their assembly have before alledged, by another accu- "rate mensuration of the distance from Hudson's river, to the westerly " line of Bennington; and further notify that assembly, that as omnipo- "tent as they may conceive themselves to be, they must nevertheless "recede from the calumny wherewith they have abused the inhabitants "of that town, or continue under the resentment of those inhabitants:" which take an additional atfront at the ill usage, inasmuch as our oppo- nants tell us, page 3d, it is to " be transmitted for the information of the " government at home;" and further inform that it was to guard against the impositions which from the want of candor, they were apprehensive the said settlers, who "spared no art of act of violence," would by their agents deceive the government at home, and therefore they had under- taken to transmit a narrative of those settlers' proceedings, for the in- formation of that government. It seems the said assembly fully resolved
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that the settlers and agents from the want of candor, would endeavor artfully to deceive, &c. and that themselves were as fully resolved to over-match them in a game of that sort, being greater practitioners than peasants; but artful as they are, they made a fatal mistake in advancing for matter of fact, that which in its own nature is incapable of proof, and what has been disprov'd by evidence of a mathematical nature, and ca- pable of further disproof by actual mensuration. It is no ways marvel- lous that those gentlemen which govern in that assembly have an antip- athy against the inhabitants of Bennington, who have had a great share in defeating them in obtaining possession of the country of the New- Hampshire grants. It seems they are not insensible of their merit, for, say they, " it is to this township erected by a charter in itself void, and so " greatly abused, that we are to aseribe all the opposition which has since " been given to the jurisdiction of New- York."" H is evident that these gentlemen have an evil eye upon Bennington inhabitants; for, when they mention the opposition to their jurisdiction. they take care to repeat the aforesaid groundless aspersion, by adding these words, "erected by a " charter in itself void, and so greatly abused." They still proceed upon this their favorite topic. and draw particular inferences from it to their advantage, "for by changing the situation" of Bennington, "it is made to " comprehend a large part of Wallumscock, which was granted under the " seal of this province so early as the year 1739." This their scandalous assertion is twice repeated in page 8th. One of the passages is as fol- lows: " Mr. Ingersoll, one of the most eminent counsel of Connecticut, "and Mr. Sylvester of Albany, were concerned for the defendants. When " these gentlemen found Breakenridge's farm to be within seventeen " miles of Hudson's river, and greatly to the westward of what the gov- "ernment of New-Hampshire had admitted to be the jurisdiction of New- " York-they told him that it was impossible to set up any principle for "his defence. Accordingly, when his case was brought up for trial, he ' refused to confess the lease, entry and ousture, agreeable to the rule. "and the plaintiff being non-snited, obtained judgment in the succeed- "ing July term, against the casual ejector."
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