USA > Vermont > The history of Vermont, from its discovery to its admission into the Union in 1791. By Hiland Hall > Part 11
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There is no doubt that a serious obstacle in the way of a speedy and successful prosecution of Mr. Robinson's mission, was the want of pecuniary means, which from the poverty and scattered situation of the New Hampshire claimants, they were not in a condition to furnish. In his letters to his family, he speaks of " the great expense of living in London," of his being in want of money, and being obliged to borrow; and says. " it is hard to make men believe the truth where there is ready money on the other side." Mr. Johnson in a letter to John Wendell dated the next month after Mr. Robinson's death. attributes the failure of complete success principally to this cause. He says, " the real poverty of those who joined Capt. Robinson, rendered them unable to give the cause that effectual support, which was necessary to give it proper weight, and render the application to the crown as regular and respectable as its importance and the usual course of proceedings in cases of this kind justly required. Money has, in fact, been wanting to do justice to this cause. It came here rather in forma pauperis, which is an appearance seldom made or much regarded in this country ; and is by no means an eligible light in which to place an affair of this kind."
Mr. Johnson remained in England as agent for the colony of Connecticut until 1771, and some further applications from the New Hampshire claimants to the crown were made through him, but without important results.
Before Mr. Robinson died, he obtained, he says, in one of his letters, the best advice in his power in regard to the conduct to be pursued by the settlers, which he proceeds to say was "to fulfill the duty required in your grants made by Wentworth that are not yet meddled with by New York, for if Wentworth's charters should not be held good, then the land would be the king's, and he never dispossessed any settlers. And where New York has made grants, give up no possession till they come in course of law, and then apply for a special jury for the trial of each case, and if the request is refused, it will be better for us here to have the application made to both the judges and the governor." This advice was made to the settlers and was the guide of their future conduct.
Gov. Moore, in obedience to the king's order in council, ceased at once to make grants of lands within the territory which had been claimed by New Hampshire, and ever afterwards complied with its re- quirements. This order of the king forbidding in such strong and decided terms the further interference of the New York government with the New Hampshire charters, inspired additional confidence of
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the grantees in their titles, and operated to promote the extension of their settlements. On the other hand it tended greatly to dis- courage the claimants under the New York patents, and though some of them brought suits in ejectment against the settlers, few, if any, of them were brought to trial, and the occupants remained in quiet possession of their lands during the continuance of Gov. Moore's administration, which, however, terminated abruptly by his death the 11th of September, 1769.1
1 Mr. Johnson's Diary and his Manuscript letters -also Manuscript letters of Mr. Robinson to his family. Petition of the widow Robinson to Vermont assembly, Oct. session, 1780. Journal of Assembly, Nov. 2, 1780.
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CHAPTER X. VIOLATION OF THE KING'S ORDER OF JULY, 1767, BY THE NEW YORK GOVERNORS.
1769-1775.
New and erroneous construction of the king's order in council of July 2.1, 1767, by Colden. The order incorporated into the standing instructions to the governor and in force till the revolution-Colden's grants violat- ing it -Gov. Dunmore - His character and quarrel with Colden - His fraudulent grant to himself- Gov, Tryon, his character and his grants, including one to himself- His visit to England, and Colden's grants in his absence - All the governors disregard the king's order and instruc- tions, and are repeatedly censured therefor by the Board of Trade and the ministry - Quantity of Vermont lands granted by New York - Tryon's proceedings in England, and his return after the commencement of the revolutionary war.
THE decease of Sir Henry Moore brought Mr. Colden again to the head of affairs, and he immediately adopted new measures in re- gard to the controverted territory. The order of the king in council, of the 24th of July, 1767, had been construed by Sir Henry Moore, to forbid the making of any grants whatever, within the district of country which had been formerly claimed by New Hampshire, and such was its natural construction. The petition of Mr. Robinson, in behalf of his constituents to the king, had not only asked for relief against against New York patents, but also to have the juris- diction of the territory restored to New Hampshire, the object of the crown being to prevent any further complication of the contro- versy until the whole subject should be fully investigated and de- termined. The subject of the report of the board of trade, on which the order was founded, was "the lands lying on the west side of Connecticut river," which " on the 20th of July, 1764, had been declared by his majesty to be within the government of New York," and the order prohibited the making "of any grants whatever of any part of the land described in said report." Mr. Colden, how- ever, under the temptation of increased patronage and fees, did not hesitate to give it a different construction.
On the 20th, of October 1769, a few weeks after the death of Governor Moore, a formal opinion from his council was obtained that the order prohibited only the granting of such lands as liad actually been granted by the government of New Hampshire, and
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did not extend to any part of the said lands which had not been granted by that government." He was, however soon apprised that he had mistaken the sense of the order, as intended and understood by his superiors in England, by a letter from Lord Hillsborough, the colonial secretary, dated December 9, 1769. in which he says : "I likewise think fit to send you a copy of his majesty's order in council, of the 24th, of July 1767, forbidding any grants to be made of lands annexed to New York by his majesty's determination of the bound- ary of that colony and New Hampshire," adding an injunction that he should not " on any pretence, presume to act contrary thereto." The receipt of this letter was acknowledged by Colden under date of the 24th, of February following. Indeed, he must have been pre- visously aware that the order was designed to embrace the whole territory, for his predecessor had repeatedly written to the colonial secretary on the subject. and had forwarded him petitions from applicants for grants of land within the district, that did not inter- fere with claims under New Hampshire, but without effect, of which Mr. Colden was, no doubt well informed.1
The intentions of the king in making the order and the earnest injunctions of his ministry were however disregarded by Mr. Colden, and he proceeded at once to make grants of the prohibited lands, as fast as applicants were ready to pay the patent fees ; and his successor, if not himself, made grants, indiscriminately, as well of lands which were embraced in New Hampshire charters as those were not, the order being thus wholly disregarded, as will be more fully seen here- after.
As this order of July 1767 has an important bearing upon the whole controversy which followed, it is proper to state here, that it remained in force during the whole colonial period, though very generally violated by all the governors. That there might be no excuse for disregarding the order, or any doubt about its construction, it was, on the 7th of February 1771, incorporated into the standing instructions of the king to his New York governors, being the 49th article of those instructions. in the following words, viz :
"49th. Whereas we thought fit by our order in council, of the 20th of July, 1764, to declare that the western banks of the river Connecticut, from where it enters the province of Massachusetts bay as far north as the forty-fifth degree of northern latitude should be the boundary between the provinces of New York and New
' Col. ITist. N. Y. vol. 8, p. 193, 106. Doc. IIist. N. Y. vol. 4, p. 609, 610, 611, 612. Appendix No.5.
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Hampshire ; and whereas we have further thought fit by our order in council of July 24, 1767, to declare that no part of the lands lying on the western side of the Connecticut, within that dis- trict heretofore claimed by our province of New Hampshire, should be granted until our further pleasure should be known, concerning the same. It is therefore our will and pleasure that you do take effectual care for the observance of said order in council, and that you do not upon pain of our highest displeasure, presume to make any grant whatever, or pass any warrant of survey of any part of the said lands, until our further will and pleasure shall be signified to you concerning the same." 1
These instructions were laid before the New York council, the 24th of July, 1771, by Gov. Tryon, and entered on its minutes.
This period of Lieut Gov. Colden's administration, which began in September, 1769, continued a little more than a year, terminating the 18th of October, 1770, by the arrival of Lord Dunmore, the new go- vernor. During this time Mr. Colden had so industriously prosecuted the business of making land grants, that his patents covered not less than six hundred thousand acres of government lands. During the whole period of nearly four years of Sir. Henry Moore's administration, his patents, besides those which were in confirmation of the New Hamp- shire charters, did not exceed twenty thousand acres. Besides the vast amount of fees which Colden had derived from these grants, he had contrived to reserve to himself, in the names of others, over twenty thousand acres of the lands he had granted, and had more- over provided liberally in lands for the several members of his family.2
The new governor, John Murray, Earl of Dunmore, was a needy Scottish peer, passionate and unscruplous in rapacity, who had come to this country to amass a fortune, and during his whole administra- tion every other consideration appears to have been sacrificed to that object. Immediately on his arrival in the colony a quarrel arose between him and Colden, which is quite charactristic of both.
Colden had hurried through his office, the land patents before mentioned and others of lands in other parts of the province, in order that the premature arrival of a successor might not deprive him of the office fees, and had thus obtained the large sum of not less than ten thousand pounds, New York currency, equal to $25,000.
1 New York Council Minutes for July 24, 1771. Col. Hist. N. Y., vol. 8, p. 331.
2 Albany Records Land Putents vols. 14 and 15. Military Grants, vol. 2. Report of N. Y. Com., 1797, p, iii, - 113.
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This sum, which had been thus clutched by Colden, was equally craved by Dunmore ; and in order to secure it, or at least a portion of it, he had procured from Lord Hillsborough an order, directing Colden to account for and pay over to him one-half of the emolu- ments of his office, from the date of his, (Dunmore's) commission, which was Jan. 2, 1770, nearly ten months prior to his arrival in the colony. Colden declined to pay and applied to Lord Hills- borough by letter, to reconsider and reverse the order. Whereupon Dunmore caused a suit to be instituted before himself as chan- cellor, in the name of the king, for its recovery for his own benefit. He had the shameless effrontery to hear the case solemnly argued by counsel and to prepare for deciding it in his own favor, but after one or two postponements of the time which he had fixed for that purpose, finding that his decree would be appealed from, to the king in council, where it was sure that the case would be dismissed, on the ground that he as chancellor had no jurisdiction, he finally left it undecided, and fortunate Colden continued to pocket the money.1
Dunmore had been but a few weeks in the colony, before he was appointed to the governorship of Virginia, but he had acquired a knowledge of the New York fee bill, and was too well pleased with his lucrative position to abandon it in haste; and he continued to exercise the office of chief magistrate of that colony until the arrival of Sir Wm. Tryon, his successor, in July, 1771. He, indeed, lin- gered in the province some months longer probably endeavoring to exchange governments with Tryon, for which he seems to have had the assent of the ministry, but Tryon and he failed to agree on the terms of the trade, and the bargain fell through. During the eight months of Dunmore's administration, he had been able to grant to speculators four hundred and fifty thousand acres of Vermont lands and to receive the fees for the same, and also by his own grant to himself, in the names of others, to become the proprietor of fifty-one thousand acres more. This grant will serve to show the cool, unblushing manner in which the instructions of the king were violated, by the New York governors, and how readily their frauds on the public were countenanced and participated in by the officers of government and other prominent individuals. The land appears to have been petitioned for by one Alexander McLure, in behalf of himself and fifty associates, not naming them, stating that there was a vacant tract of land near Otter creek, of fifty-one thousand
Judge Daley's Sketch of New York Judicial Proceedings, p. 45. Col. Ilist. N. Y., vol. 8, p. 209, 249, 256, 257.
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acres of which he and his associates were desirous of obtaining a patent " intending to cultivate and improve the same." The appli- cation being laid before the council, and approved, a patent was issued to MeLure and fifty other persons by name on the Sth day of July, 1771, the very day on which Dunmore surrendered his office to Tryon his successor. Five days afterwards, on the 13th of the same July, every one of the patentees conveyed their shares to Dun- more who in the name of the king had issued the patent to them. Among the patentees who thus voluntarily united in the fraud were Alexander Colden, son of Lieut. Gov. Colden, and surveyor general of the province, Andrew Elliot the receiver general, Hugh Wallace and Henry White, members of the council, Edward Foy, Dunmore's private secretary, Goldsbrow Banyer, clerk of the council and deputy secretary of the province, Hugh Gaine, the public printer, White- head Hicks, mayor of the city of New York, and a long list of land speculators holding patents for, from fifteen thousand to one hun- dred thousand acres each, among whom were Simon Metcalf, John Bowles, John Kelly, Crean Brush, and James Duane. The land described in the patent was situated in the present county of Addi- son, and was a tract some twelve or thirteen miles in length from north to south, by six or seven in width, lying principallyän the east side of Otter creek, in the townships of Leicester, Salisbury, and Middlebury, embracing within its limits the lake which bears the name of the grantor; but reaching across the creek into the townships of Whiting and Cornwall. All the land included in the patent had been previously granted by New Hampshire. The granting of the land, as has been seen, was prohibited by the king's order of the 24th of July, 1767, even upon the limited construction given it by Colden ; and the grant being thus made without authority of the crown, was unquestionably void in law for that reason, and would have been declared so by any competent and impartial judi- cial tribunal having power to determine it.1
It may be added in further notice of Lord Dunmore, that he went to Virginia in 1772, where he was charged with seeking to weaken the colonies in their resistance to the arbitrary measures of the mother country, by promoting a territorial controversy between
1 Col. Hist. N. Y., vol. 8, p. 278, 209, 323, 221, 148, 149, 188, 694. Report N. Y. Com., 1797. Albany Records Patents, vols. 15 & 16. Military grants, vol. 2. Deeds, vol. 19, p. 3. That Lord Dunmore was well aware that the prohibitory order was still in force is apparent from several letters of his to Lord Hillsborough, vainly asking to have it rescinded. Col. Hist. N. Y., 252, 259, 261, vol. 8.
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Virginia and Pennsylvania, and by exciting a slave insurrection and an Indian attack upon the back settlements. When hostilities began in New England, he fled from his capital, on board the Foway man of war, and for several months amused himself by com- mitting depredations about the harbors and rivers of his province, ending his achievements by the burning of Norfolk, whence he retired with his plunder to St. Augustine, Florida. He is said to have died in England in 1809.1
Sir William Tryon, the successor of Dunmore, had spent his early life in the army, and was fond of parade and display. His manners and address were dignified and pleasing, wearing the appearance of sincerity and candor ; but he was artful, treacherous and cruel. Bancroft sums up his moral qualities in a few words, calling him "selfish Tryon who under a smooth exterior concealed the heart of a savage." He came to the province from North Caro- lina, where he had been the king's governor for the previous six years. He had there exhibited his love of pomp and display, by numerous military parades at the public charge, and by the erection at an enormous expense for his own occupation, of " a governor's house, worthy the residence of a prince of the blood," and when he had dexterously procured the assent of the assembly to a tax to cover his extravagant expenditures, he caused its collection to be enforced with rigor, and to the serious oppression of the people, producing an insurrection which he put down with a strong hand, and with vindictive and unfeeling cruelty.2
But notwithstanding the unfavorable rumors which had preceded Tryon's arrival in New York, he seems to have been well received there, and by his plausible and conciliatory manner, coupled with a skillful use of his power of granting lands, and a judicious distribu- tion of favors and promises in influential quarters, he acquired much popularity, especially with the colonial assembly, which he kept far behind those of the other colonies in their opposition to the tyrannical measures of the king and parliament.
Although Gov. Tryon was well aware of the king's prohibitory order of July, 1767, and of the new instructions including the forty- ninth article, forbidding him from granting any lands within the territory formerly claimed by New Hampshire, having laid those in- structions before his council a few weeks after his arrival in the colony, he did not long obey them. He continued to administer the
1 Col. Hist. N. Y., vol. 8, p. 209. Allen's Biog. Dic.
2 Martin's North Carolina, vol. 2, chap. vii and viii.
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government until in April, 1774, when he departed for England in obedience to the direction of the ministry, leaving the government in the temporary charge of Lieut. Gov. Colden. During this period of Tryon's administration, besides confirming the New Hampshire charters of several townships on the east side of the Green mountain, he issued patents to new applicants, for over two hundred thousand acres of land, within the prohibited territory, a considerable portion of which had been previously granted by New Hampshire. Besides this, after the fashion of his predecessor, he provided himself with a township of thirty-two thousand acres, by the name of Norbury, situated in the present county of Washington, in the vicinity of the towns of Calais and Worcester. The patent bore date April 14, 1772, and was issued to thirty-two individuals, among whom were his son- in-law, Edmund Fanning. Receiver General Elliott, Secretary Banyar, James Duane, Col. John Reid, John Kelly, Crean Brush, and other noted land speculators. On the 16th day of April, the second day after the date of the patent, all the patentees conveyed their shares to the governor.1
The last patent issued by him during this term of his adminis- tration bore date in June, 1772, from which time till his leaving for England, a period of nearly seventeen monthis, there appears to have been a total suspension of grants of Vermont lands. Perhaps the reason for Gov. Tryon's ceasing to make grants at that time, may be found in a new movement which the New Hampshire settlers were making to carry their complaints again to England. On the 25th of November, 1772, a few days after the date of his last patent, the governor communicated to his council, "intelligence he had received from Major Philip Skene, informing him that the deputies of Bennington and the adjacent towns, at a meeting at Manchester, on the 21st of October, had appointed Jehiel Hawley and James Brackenridge their agents, who were immediately to repair to Lon- don, to solicit their petition to his majesty, for a confirmation of their claims under the grants of New Hampshire." 2 Serious dis- turbances had arisen within the controverted territory, accounts of which had from time to time been sent to England, by the New York government, and the whole subject had for some time been under the consideration of the board of trade. It is not improbable that Tryon may also have received intimations that his conduct towards the New Hampshire grantees was not viewed in a favorable
1 Albany Records Land Papers. Patents, vol. 16. Deeds, vol. 19, p. 97.
" Doc. Hist. N. Y., p. 802.
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light by that body. That his deliberate violation of the king's pro- hibitory order, of July, 1767, as well as his general disregard of the regulations of the crown. respecting the granting of lands, met the strong disapprobation of the board of trade and of the ministry, he not long afterwards had very full evidence.
As early as Dec. 4, 1771, Lord Hillsborough had written to Tryon, asking for a full report " of the method of proceeding upon appli- cation for grants of land, in order that his majesty may be informed whether such method does or does not correspond with the letter and spirit of the royal instructions given for that purpose ; for," he adds, " if it should turn out that grants are made to persons by name who never personally appear at the council board, or who are examined as to their ability to cultivate and improve the land they petition for, and that the insertion of names in a patent under pre- tence of their being associates or copartners is only a color for giving to any one person more than he is allowed by the king's instructions, it is an abuse of so gross and fraudulent a nature as deserves the severest reprehension, and it is highly necessary both for the interest of the crown, and for the dignity of his majesty's government that some effectual measures should be taken to put a stop to it." In his answer to this letter of the colonial secretary, Gov. Tyron, after stating that it would be extremely difficult to prevent the application for lands " under borrowed names," under- takes to show that such grants deserve encouragement rather than censure. "I conceive it my lord," he says, " good poliey to lodge large tracts of land in the hands of gentlemen of weight and consi- deration. They will naturally farm out their lands to tenants ; a method which will ever create subordination, and counterpoise, in some measure, the general leveling spirit, that so much prevails in some of his majesty's governments." It may be worth while to mention that this answer to Lord Hillsborough's instructions against fraudulent grants to nominal grantees bears date April 11, 1772, three days prior to that of the patent which Tryon had issued for himself of thirty-two thousand acres in the names of that number of his dependants and friends. Under date of the 18th of the same April, Lord Hillsbo- rough again wrote to Tryon. enjoining him " to pay strict attention to the instructions that had been given him," in regard to the lands " in that country which had been annexed to New York by the determination of the boundary line " with New Hampshire ; to which injunction it is scarcely necessary to state that he paid no attention. It should now be understood that Gov. Tryon, in July,
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1772, attended a congress of Indians at the residence of Sir Wm. Johnson, where he assented to the purchase from the Mohawks, by a few individuals, of more than a million of acres of their lands, and promised to issue patents for the same to the purchasers.1 On hearing of this proceeding, Lord Dartmouth. the new colonial secre- tary, under date of Nov. 4, 1772, wrote to Tryon, saying that "the engrossing of lands on the Mohawk on pretence of purchases from the Indians had been repeatedly and justly complained of," and forbidding him to take any steps to confirm the purchases, until the Indian deeds were transmitted to him and " the king's pleasure sig- nified thereupon." Lord Dartmouth also complained of his conduct in granting lands " annexed to New York, by the determination of the boundary with New Hampshire," which, he says, makes it neces- sary for the board of trade to resume again the consideration of the whole subject.
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