USA > Vermont > Records of the Governor and Council of the State of Vermont, Vol. V > Part 67
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3dly. IT is alarming, in that it appears from the whole face of the thing, that monopolizing and aggrandisement are the principal objects in view; and that this new mode of government is a little horn, growing
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up in the place where the other was broken off; for by this plan, the majority of the Council are to be chosen out of a part of the Colony ; perhaps not more than one fourth part of the extension of inhabited territory in the Colony: And as the same power that formed the Coun- cil are to regulate the representative body, we may depend upon it that. their conduct will be all of a piece so as to support their new formed and instituted body; as they have reserved to themselves the power of regulating this matter, as their wisdom and sovereign pleasure shall dictate. If they meant to establish a plan for future representation, why was it not put on some equal footing or rule, whereby the people might be able to judge of its propriety, and know when they acted upon it or not ? But as the case now is, if any town or number of towns are neglected, or deprived of having a Representative, the only remedy is to go with a petition or complaint to the new erected house, praying for redress, &c. And what may be expected for answer? If it is rational it will be this only: that it was not the sovereign pleasure of the former Assembly that you should be represented; which will be a full answer. Pray where is the difference between this establishment and the former one, so much complained of, except that the Governor had the power in the former, and a number of persons in the latter. Much more might be offered, to obviate the objection, but we think what is said already is sufficient: And shall now proceed to some others. 2dly. It is ob- jected by some, that a large and full representation will be more expen- sive, and a small number can do the business sufficiently .- To which we answer-by the same parity of reasoning we may say, that one man is sufficient to do the business, which will make a greater saving still, and so put out our own eyes, and trust to others to lead us. But re- member, he that gave up his birthright for a small mess of pottage, had his fate into the bargain, that his brother should rule over him .- We believe this objection arises principally for want of a just estimate of so invaluable a privilege-the other Colonies have thought it necessary, and actually made it a precedent, that every incorporated town, or dis- trict, should be represented by one member at least, and generally two. And it may be observed, almost universally, that where there is a full representation, the people chearfully submit to whatever is done: But especially, in laying the foundation of Government, and establishing a constitution. We think it of the utmost importance, that every inhab- ited town have the liberty, if they please. of electing one member, at least, to make up the legislative body-As it may be much questioned, if any one distinct corporate body be neglected, or deprived of actual rep- resentation, whether, in that case, they are any ways bound, or included by what the others may do: Certainly, if they are considered in a state of nature, they are not: No, not even an individual person. But sup- pose it should be thought prudent at any time, by the legislative body, to restrict, or lessen the number of representatives ; it is absolutely necessary that the whole should be active in the matter; in order to surrender their privileges in this case, as they cannot be curtailed without.
3dly. It will be objected perhaps by many, that to contend about this matter at the present time, will have a tendency to stir up division and contentions amongst the people, which would be fatal to the common cause, which so much depends upon our union, &c. This objection, at first view, appears important: But upon examination will vanish. We readily agree, that it is a thousand pities, that when we are engaged in a bloody contest, merely to oppose arbitrary power without us, we should have occasion to contend against the same within ourselves; es- pecially by those who pretend to be friends of liberty .- We imagine that
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this objection arises for want of due consideration. We are much mis- taken in our views, if we are not proposing that, and that only, which . will prevent contentions, and divisions taking place amongst us: And that which will have the most happy effect to unite us in indissoluble bonds of union and friendship. Certainly, if the observations, we have made, are just, the objections must cease in the mind of every reasona- ble person; for if we consider, that the great object we have in view, for which the present unnatural war is pursued between Britain and us, principally consists in this, that there cannot be any legislation or taxa- tion without representation: Or in more explicit terms, That no person is, or ought to be subject to a law, which he had no hand in making; or to which he hath not given his consent; or that his property cannot be taken from him, but by his voluntarily giving it .- Now if the case under consideration be similar, (which we think very plainly appears) are we not pursuing the same general cause ? the only difference is, we are contending against the same enemy within, that is also without: And certainly, if arbitrary power without us, ought to be rewarded with vengeance, that within ought to have seven-fold. Therefore, we are persuaded that every one who is a true friend to the liberties of man- kind, and has any sense of his own or posterity's good, will think, that the cause well deserves a serious consideration, and speedy remedy.
If there were no steps taken towards settling a foundation of govern- ment in the Colony, we might more easily be excused at so difficult a time, as the present is : But to our surprise we find the plan already laid, and confirmed, as to the most essential part-by the present pre- tended Assembly.
4thly. PERHAPS it will be said by some, that the proper remedy in this case would be by petition and remonstrance to said Assembly for relief &c. To this we can say, that it was early done by several towns in the Colony; but to no purpose; as the petitions were rejected, and in a manner treated with contempt. Besides, if they represent but part of the Colony, and are not legally constituted, it is absurd to petition them as a legal body, to grant relief, especially, if in doing it they would de- stroy their own political being. The true state of the case is, that we have no legal power subsisting in the Colony, for the purposes, for which it is now necessary there should be : It is still in the hands of the people, to whom we address ourselves; and whom we call upon, to exercise the rights and privileges they have to erect a supreme legisla- tive Court for the Colony, in order to lay a foundation and plan of gov- ernment in this critical juncture of affairs: And that we no longer re- main, as in a state of nature or anarchy; without law or government. Now is the time, when we may not only act for ourselves, and posterity, freely, and without controul-but we are called upon to do it; and if this opportunity be lost, we shall not have it renewed again, although we may seek it carefully with tears, when it is too late. The time has been, when we have petitioned and prayed to others, for this privilege, but to no purpose: And depend upon it, if we sleep on a little longer, we shall awake up under like circumstances. As for ourselves, we are deter- mined not to spend our blood and treasure, in defending against the chains and fetters, that are forged and prepared for us abroad, in order to purchase some of the like kind of our own manufacturing .- But mean to hold them alike detestable. Therefore, Brethren, we refer the case, with what we have offered upon it, to your candid perusal-desiring, the same may conduce to the general good of the inhabitants of the Colony; which is the only motive exciting us hereto. And will only add that though we have no desire to dictate in the matter, yet as it is necessary some method be proposed by which the sentiments of different towns
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may be known to each other, relative hereto; it is our desire in case any town, or number of towns, concur with us in sentiments as herein ex- pressed; that they will communicate the same by letters directed to BEZALEEL WOODWARD, Esq; of Hanover, Clerk of the United-Com- mittees, by whom the foregoing address is published; that we may be able to correspond on the subject; and that some measure may be pur- sued whereby our invaluable privileges may be secured.
Signed in behalf of the inhabitants of the towns before mentioned, by or- der of their Committee.
NEHEMIAH ESTERBROOK, Chairman. Hanover, July 31, A. D. 1776.
BEZALEEL WOODWARD, Clerk.
N. B. The meeting of the above mentioned Committees stands ad- journed to the second Thursday in October next, then to be held in the College Hall, in Hanover, at 10 o'clock A. M.
Sept. 30 1776, the legal inhabitants paying taxes in the towns of Han- over, Canaan, and Cardigan, were required to meet at Hanover and elect one person having a real estate of the value of two hundred pounds to represent those towns in the Assembly of New Hampshire. On the 27th of the following November they did meet and voted unanimously that the preceding address was truly expressive of their sentiments; and also that they would not choose a representative as directed in the precept of the Council and Assembly, for reasons substantially as set forth in the address. 1
OBSERVATIONS ON THE RIGHT OF JURISDICTION CLAIMED BY THE STATES OF NEW YORK AND NEW HAMPSHIRE, OVER THE NEW HAMPSHIRE GRANTS (SO CALLED) LYING ON BOTH SIDES OF Connecticut-River. IN A LETTER TO THE INHABITANTS ON SAID GRANTS.
DANVERS: Printed by E. RUSSELL, at his printing-[cut off in trim- ming]. MDCCLXXVIII.2
FRIENDS AND FELLOW CITIZENS.
MY acquaintance with Your Political State and circumstances, and of . the difficulties attending You, induces me to present You with the fol- lowing Remarks and Observations, which, according to my apprehen- sion, may serve in some measure to point out the way for a removal of them: And as my only design is to promote the Public Good, if it should have that effect, it will much more than compensate Your real Friend for his little pains .- You will observe, I have proposed to con- sider the Right of Jurisdiction claimed over You by the States of New- York and New-Hampshire. - In prosecuting which I shall begin with the Origin of that Jurisdiction, and pursue it down to the present time.
SHALL therefore begin by taking notice " that King James the First, by his Patent, dated November 3d, 1620, incorporated the Duke of
1 N. H. State Papers, Vol. VIII, pp. 421-426.
2 A very rare pamphlet, found in the library of the Massachusetts His- torical Society, Boston. It was printed at Danvers, Mass., in 1778, a appears in succeeding pamphlets.
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Lenox, the Marquisses of Buckingham and Hamilton, The Earls of Ar- undel and Warwick, Sir Fernando Gorges, and thirty-four others, by the name of the Great Council, established at Plymouth, in the County of Devon. for the planting, ruling, ordering, and governing of New-Eng- land in America." --- - And grants to them and their successors and " assigns all that part of America lying and being in breadth from the 40° of northerly latitude from the equinoctial line to the 48° of the said northerly latitude inclusively, and in length of and within all the breadth aforesaid throughout the main lands from sea to sca, together also with all the firm lands, soil, grounds, havens, &c. Provided always, that the said islands or any the premises by the said letters patent in- tended and meant to be granted be not actually possessed or inhabited by any other Christian Prince or State."
THIS Great Council established at Plymouth as aforesaid soon granted all the lands contained in their said Grant (as they supposed) to the several New-England Colonies, and resigned their Grant into the King's hands; and among the several grants they made, they granted to the an- cestors of Robert Mason, Esq; his heirs. &c. a tract of land about twen- ty-four miles on the sea shore, extending back into the Country about sixty miles, commonly called New-Hampshire; which lands on the east- terly part of them next to the sea soon began to settle, but were much prevented by the Indian wars, and the settlers were under no regular form of Government, except that the Massachusetts-Bay in some meas- ure exercised Jurisdiction over them .- In this situation they continued until after the restoration of Charles the Second, and in the sixth year of his reign a commission was granted to John Cutts, Esq; President of the Council established for the ruling and governing of said New-Hamp- shire, bounding it as follows, riz. "Lying and extending from three miles northward of Merrimack-River, or any part thereof unto the province of Maine (No. " E.") "- Afterwards, in said commission there is this further clause, viz. " And it appearing unto Us that the ances- tors of Robert Mason, Esq; obtained Grants from our Great Council of Plymouth for the tract of land aforesaid, and were at great exvence upon the same," &c. - Whereby it appears that said province of New- Hampshire as it was then bounded, and the grant to the said Mason was one and the same tract of land; under which form of Government said province of New-Hampshire continued until a commission was granted to Benning Wentworth, Esq; enlarging the extent of said prov- ince by including all the lands in said Grants on both sides of Connecti- - cut-River, with power of granting them in the name of the King; and also right of Jurisdiction over the whole; which Governor Wentworth granted great part of those lands included in said Grant previous to the sixth year of the reign of George the third, when his said commission was revoked, and a commission granted to John Wentworth, Esq; to preside Governor over the same extent of Territory; who continued in his seat of government until the commencement of the present war, and then left it vacaut .- These commissions are all the Grants that were ever made or given to said province of New-Hampshire relative to their Civil Government; and were held subject to alteration or revocation at the pleasure of the Crown; And the said John Wentworth while he presided Governor as aforesaid granted the remainder of the lands on said Grants; and in consequence thereof the Grantees have entered up- on them and cultivated and improved them, extending from said former province of New-Hampshire, or said Mason's westerly line westward to Lake-Champlain or thereabouts; southerly to the north line of the Mas- sachusetts-Bay; northerly to the Canada line, and easterly to the prov- ince of Main.
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THESE Grants remained under the Government of New-Hampshire until about the year 1764; when a determination of the Lords of the Board of Trade and Plantations was obtained by the province of New- York, that the Jurisdiction of the Grants west of Connecticut-River should be under New-York; at the same time confirming and approving those Grants by Governor Wentworth as aforesaid.
IN this situation the Government on those Grants continued until the commencement of the present war; since which the several Conven- tions and Assemblies of the State of New York claim Jurisdiction over those Grants west of Connecticut-River, and the Conventions and Assem- blies of the State of New-Hampshire claim Jurisdiction over the Grants east of said River, notwithstanding the refusals to submit and repeated remonstrances against said claim .- In order therefore to examine the justice of them, it will be necessary to consider them distinctly and apart.
AND First,-All the right that ever New York had. either to the Soil or Jurisdiction of those Grants west of Connecticut- River, came by virtue of the Royal Grant to the Duke of York; this is the only basis of the extent of said Province or State of New-York, except the decree of the Board aforesaid. It will be necessary therefore in this inquiry to recite part of said Royal Charter, so far as it relates to the bounds and limits thereof, together with date, &c .- But before we proceed shall take notice that at the time of the Grant made by King James to the Council established at Plymouth as aforesaid, the Dutch and Sweeds were in possession of New York, Albany and part of the Jersies; and about that time or a little after and before 1653 there was a settlement of some French at a place called St. Croix near to New-Scotland (alias) Nova- Scotia (and a few families of Dutch settled at Hartford on Connecticut- River, which settlement at Hartford was evacuated long before the Grant to the Duke of York, and all pretensions to any claim on Connec- ticut-River given up.) I now proceed to observe that in 1664 (there being a war between the English and Dutch) King Charles meditated sending a force to cause the Dutch to surrender the lands by them pos- sessed on Hudson's River, and on the 12th of March, 1664, by his letters patent "Gave and granted to his Royal Brother James, Duke of York all that part of the main-land in New-England, beginning at a certain place called and known by the name of St. Croix next adjoining to New- Scotland in America, and from thence extending along the sea coast unto a place called Peroniquie or Piemiquid and so up the River thereof to the furthermost head of the same as it tendeth northward, and ex- tending from thence to the River Kenebeque and upward by the short- est course to the River Canada northward; and also all that island or islands commonly called by the several name or names Mattawacki or Long Island, situate, lying, and being toward the west of Cape-Cod and the Narragansett, abutting up the main land between the two Rivers there called and known by the names of Connecticut and Hudson's-River, and all the land 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 names of Martin's Vineyard and Nantucks, otherwise called Nan- .tucket, together with all the lands, soils, islands, &c. and all the estate, right, title, interest, benefit, advantage, claim and demand of, in, or to the said lands and premises, or any part or parsels thereof."-'And at the same time gave a commission to Colonel Richard Nichols to dispos- sess the Dutch and take possession thereof in behalf of his Brother the Duke of York, which was accordingly executed in the month of August 1664, and Colonel Nichols remained in the Duke's Government three years, and in June 1670 the Dutch Government was again revived and
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continued until 1674 on a treaty of peace signed at Westminster in Feb- ruary. The English Government was restored, and on the 29th of June 1674 his Royal Highness the Duke of York obtained from the King a new Patent of the same lands and territories in the same words with the former differing only in the date.'
HAVING thus far recited the bounds and limits of the Grant to the Duke of York, which is all that can be claimed in favor of the present State of New-York, as to the extent of their Jurisdiction as being paten- tees or Assignees to the Duke, I shall now proceed to consider in a legal and rational point of light, and show that by a fair construction it can- not be supposed to include those Grants or any part of them west of Connecticut-River .- Therefore, in the first place take notice that two thirds or more of the lands and territories literally contained in the Duke's Grant were so obviously absurd (as to its holding them) that all pretensions of claim to them have been laid aside from the beginning; and scarcely any part thereof is holden according to the literal and ex- press words of the Grant .- This therefore makes it necessary to inquire upon what principle or construction they do or can hold ?- I answer by the reserve made in the Grant of King James to the Council established at Plymouth as before recited, viz. " All lands, &c. in the possession of some other Christian Prince or State;" and had it not been for this pro- viso or reserve the Duke would have taken nothing by his Grant: For all except this was granted to the Council of Plymouth, and by them re- granted, &c .- Therefore the fair construction of the grant must be that it includes all the lands within the limits of New-England that were in the possession of some Christian Prince or State other than the King of England at the time of granting to the Council of Plymouth as afore- said, and no more .- Consonant to this construction has been the prac- tice and proceeding of all parties concerned from the beginning: To this we may observe that the subdning the Dutch in order to obtain pos- session for the Duke was as early and even coeval with the Grant itself. -And when the Dutch had revolted from under the English government and were a second time brought under subjection the Duke applied for a second Grant of the same land which plainly shews lie was apprehen- sive that his first Grant was lost by the revolt of the Dutch; and also that the lands they were in possession of, and which they claimed, were the lands and territories contained in his Grant; agreeable to this have been all the settlement of the limits and boundaries of this Grant by the Duke, his Patentees, or Assignees with the other Colonies adjoining to to them from first to last. - Also the bounds and extensions of this Grant clearly show that this was the intent of it .- For observe, the Grant ex- pressly extends to every part of New-England where there had been any settlement of any foreign nation, though ever so remote from the main object, viz. New-York ; which cannot be rationally accounted for but upon this principle, viz. to include all the lands that were reserved as aforesaid. MUCH more might be said to establish this construction of the Grant, but I think what has been assigned is sufficient, at least for my present purpose: And therefore shall only observe, that if this con- struction be true, and there was no settlement or claim of the Dutch or any other Christian Prince or State other than the English on or near Connecticut-River at the time of granting to the Council of Plymouth or the Duke of York, there can be no pretensions of extending said Grant to Connecticut-River or any part thereof.
I SHALL observe once more, that even by the literal expressions in said Grant or Patent it cannot be supposed to include those lands; for the only clause in said Grant that can be pretended to include the lands on which said Grants are is this, viz. " And all the land from the west
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side of Connecticut-River to the east side of Delaware-Bay."-Now all the lands that may be fairly said to lie between those two extremes may be said to be included by that clause, and those lands which cannot be said to lie between those boundaries, cannot be said to be included, although they may be said to lie west of Connecticut-River: For observe by the expression they must lie east of Delaware-Bay as well as west of Con- necticut-River .- Therefore for trial's sake let us suppose a line drawn from the mouth of Connecticut-River to the east side of Delaware-Bay even to the northern extent of it .- This I believe without dispute would leave all or nearly all the lands on the main west of Connecticut-River to the north; this construction therefore won't answer: Then let us sup- pose a line drawn from the head of said River to the east side of Dela- ware-Bay, and then the lands on those Grants will still lie westward, and not be included: There is therefore but one way that I can possibly think of that will comport with the phrase and include the lands in question: and that is to extend Delaware-Bay in the same degree of lon- gitude that it is now in as far north as the head of Connecticut-River, and then all the lands west of Connecticut-River and east of Delaware- Bay would be included by that clause so as to take in the lands on the said Grants; such a construction every unbiassed mind will reject .- I shall therefore dismiss this point relative to the right of jurisdiction merely by the extent of said Grant, and proceed to the consideration of it in a different view: For whether the lands on those Grants are in- cluded in the Grant to the Duke of York or not, the fee of them has been granted by the Crown to the present Grantees and since confirmed to them; so that Jurisdiction is the only matter in dispute. The light in which I shall now consider this right is relative to the decree of the Lords of Trade and Plantation before mentioned, which, I suppose, is the greatest right that can be urged in favor of the claim. And in this point of light I consider all the grants upon equal footing: For as to any connexions by grant or charter either with the State of New-York or New-Hampshire, I have observed there is none, except royal commis- sions to Governors in the one case, and a decree of the Lords in the other, that can be challenged as giving them a right to exercise Jurisdic- tion in this case. Let us therefore consider what the nature and design of these commissions to exercise Jurisdiction over particular territories and extent of lands are.
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