USA > Vermont > The history of Vermont, from its discovery to its admission into the Union in 1791. By Hiland Hall > Part 12
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On the 3d of December 1772, the board made a representation of the whole matter to the committee of the privy council, in which they submitted several propositions for the adjustment of the land controversies ; which propositions and the proceedings thereon, will be noticed hereafter. In this representation the board speak of the difficulties which had arisen from the disregard by the New York governors of the king's order of July, 1767, of "the great injury and oppression suffered by the settlers from the irregular conduct of the governor and council of New York, in granting warrants of
1 The Indian deeds there obtained were as follows: the lands lying on the upper waters of the Hudson and between that and the Mohawk river.
To John Glen and others, 9,000 acres.
Jellis Fonda and associates, 120,000
John Bergen and associates,. 24.000
Thos. Palmer and associates, 133,000
Ebn. and Edward Jessup and others, 40,000
Joseph Totten and Stephen Crossfield, 800,000
Total 1.126,000
Col. Hist. N. Y., vol. 8, p. 304-310. Albany Records, Land Papers, vol. 32, p. 40 to 45. Gen Philip Schuyler in a private letter to a friend written in September, after this, says that Tryon's fees for the grants made on this visit to the Indians exceeded £22.000, being equal to $55,000, and he adds, " a large premium is offered by the land jobbers at New York to any ingenious artist who shall contrive a machine to waft them to the moon ; should Ferguson, Martin, or any eminent astronomer, report that they had discovered large vales of fine land in that luminary, I would apply to be a commissioner for granting the lands, if I knew to whom to apply for it." - Lossing's Life of Schuyler, vol. 1 p. 263.
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survey for lands under their actual improvement," and of the exor- bitant fees demanded on the granting of lands, which they say are by the ordinance of 1710 " considerably larger than what are at this day received for the same service in any other of the colonies ;" and yet, the representation proceeds, " the governor, the secretary, and the surveyor, have taken and do now exact more than double what that ordinance allows, and a number of other officers do upon various pretences take fees upon all grants of land insomuch that the whole amount of these fees upon a grant of one thousand acres of land, is in many instances not far short of the real value of the fee simple, and we think we are justified in supposing that it has been from a consideration of the advantage arising from these exorbitant fees, that his majesty's governors of New York have of late years taken upon themselves, upon the most unwarrantable pretences, to elude the restrictions contained in his majesty's instruc- tions with regard to the quantity of land to be granted to any one person, and to contrive by the insertion in one grant of a number of names either fictitious or which, if real, are only. lent for the pur- pose, to convey to one person in one grant from twenty to forty thousand acres of land, an abuse which is now grown to that height as well to deserve your lordship's attention."
In a letter from Lord Dartmouth to Governor Tryon, dated the 9th of the same December, he says: "I am further to acquaint you that the sentiments, expressed in Lord Hillsborough's letter to you of the 4th of December, 1771, concerning the unwarrantable and collusive practice of granting lands in general are fully adopted by the king's servants, and I was exceedingly surprised to find that such an intimation to you on that subject had not had the effect to restrain that practice, and that the same unjustifiable collusion had been adopted in a still greater extent in the liences you have granted to purchase lands of the Indians." In a letter of March 3, 1773, Lord Dartmouth again expresses his dissatisfaction with the conduct of Governor Tryon, in relation both to the licences granted to the purchasers of land from the Indians, and to the grants under New Hampshire.
The report of the board of trade, of December 3, 1772, before mentioned, having been approved by the king in council, was transmitted to Governor Tryon, with instructions to have it carried into effect ; and he, in reply, addressed a long communication to the colonial secretary, insisting that the plan therein proposed was unjust to the New York patentees and impracticable. IIe also in another letter, attempted a defence of his conduct in relation to the
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purchases of the lands of the Indians. In reply to this last letter Lord Dartmouth, under date of the 4th of August, 1773, says : " I have read and considered your letter with great attention, and still remain of opinion, that a license given without the king's previous consent and instruction, to private persous to make pur- chases from the Indians of above a million of acres of land, accom- panied with an engagement to confirm their titles by letters patent under the seal of the colony, was contrary to the plain intention of the royal proclamation of 1763,1 incompatible with the spirit of the king's instructions. and an improper exercise of the power of grant- ing lands, vested in the governor and council."
Lord Dartmouth further deelares, that he cannot advise the king to confirm the purchases, but intimates that the purchasers may perhaps be entitled to some reasonable compensation for their expenses ; and he then adds, " but I must be better informed of many circumstances before I can judge in what mode it can be given ; and it is for this reason, as well as from a consideration of the want of a more ample and precise explanation of the state of the province in general respecting those different elaims to lands that have been a source of so much disquiet and disorder, that I have humbly moved the king that you may be directed to come for a short time to England, and his majesty has been graciously pleased to approve thereof."
The receipt of this letter was acknowledged by Tryon early in October, but as it allowed him considerable latitude in regard to the time of his departure, he postponed it until the ensuing spring.
When the colonial assembly met in January, the governor in his speech, announced his intended visit to England, in such a manner. as did not imply (as we have seen the truth was) that dissatisfac- tion of the king's advisers with his own conduct in the granting of lands was one of the principal causes of his recall. His language in his speech was as follows :
" The contests which have arisen between the New York grantecs and the claimants under New Hampshire, and the outrages committed on the settlers under this government, having been productive of much confusion and disorder, and requiring immediate consideration, his majesty has been graciously pleased to command me to repair to
' This proclamation after declaring that great frauds and abuses had been committed in the purchase of lands from the Indians, etc., prohibited all such purchases by private persons, and declared that all purchases should be by the governors for the crown only .- U. S. Land Laus, vol. 1, p. 87.
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England for a short time to attend to the discussion of this import- ant matter." 1
The absence of Gov. Tryon continued from the 7th of April, 1774, to the first of July, 1775, during which time the government of the province was administered by Lieut. Gov. Colden. Notwith- standing the strong condemnation which the conduct of the New York governors in granting lands in the prohibited territory had repeatedly received from the ministers of the crown, Mr. Colden continued the issue of patents so freely, that during the absence of Tyron in England, about four hundred thousand acres of Vermont lands were covered by them, the patent fees for which could not have been less than ten thousand dollars. The whole quantity of Vermont land patented by New York, up to the period of the revolution, besides that embraced in confirmatory charters, exceeded two millions of acres, more than three quarters of which had been granted in direct violation of the king's order of July 1767, and of the 49th article of the standing instructions of the crown. These grants, in the hands of those who were aware of the want of authority in the governors to make them, as was the case with most of the patentees, were, in point of law, absolutely null and void .?
The mission of Gov. Tryon to England, so far as it related to the controversy with the New Hampshire claimants, was without result. The matter appears to have been discussed before the board of trade the 2d of March, 1775, when upon the proposal of Gov. Tryon, it was agreed that a case should be stated in relation to the conflicting grants, and " an action brought thereupon in the supreme court of New York, upon such grounds that either by special verdict or upon some plea of error an appeal might lie from the judgment of said court, to the governor and council, and from them to his majesty in his privy council; or otherwise that the matter should be settled by arbitration in any mode that should be satisfactory to the different parties." But at a meeting of the board a week afterwards, Col. Reid, who held a grant of seven thousand acres, made in violation of the king's prohibitory order of July, 1767, and who was also agent of Lord Dunmore, in relation to his graut to himself, appeared, and having stated that he had material evidence and information to lay before their lordships, touching this matter, it was agreed to reconsider the propositions stated in the minutes of the 2d instant,
' Col. Hist. N. Y., vol. 8, p. 313, 330, 336, 339, 350, 312-6. 359, 373, 380-7, 392. Assembly Jour. of Jan. 12, 1774.
2 Albany Records, Patents, vol. 14, 15, & 16, and Military Grants, vol. 1, 3, and 3.
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when Gov. Tryon, who was going to Bath on account of his health, should return from thence." It would seem from these minutes of the board, that Col. Reid was unwilling to have the legality of his own grant and that of Lord Dunmore, tested by judicial proceedings, and doubtless not without good reason.
The troubles between the mother country and the colonies were now approaching a crisis, and engrossed the principal attention of the British ministry. It is not probable that any further action was taken by the board in relation to this local controversy. Lord Dartmouthi, however, on the eve of Gov. Tryon's departure, in a letter bearing date May 4, 1775, assured him that their lordships were actively engaged in examining the subject, and that he should soon be able to send him his majesty's orders in regard to it. He then instructs him as follows : " In the mean time, it will be your duty to take no further steps whatever regarding those cases, and to avoid, in conformity to the instructions you have already received, making any grants or allowing any surveys or location of lands in those parts of the country which are the seat of the present dis- putes."1
On the 25th of June, Gov. Tryon reached New York harbor from England, to find the country involved in civil war. Information of his arrival was communicated to the provincial congress, then in session in that city, and on the same day a letter was received from Gen. Schuyler, that Gen. Washington, who had just been chosen commander in chief of the American army, was on his way with his suit from Philadelphia to Boston, and would reach New York before night. The provincial congress, composed largely of secret tories and timid and hestitating whigs, were in great trouble how to act in case both Gov. Tryon and Gen. Washington should reach the city at the same time. Tryon was, however, several hours behind Washington, and public receptions were given to both, the welcome of the general being the most earnest and hearty. Gov. Tryon had, however, a strong hold on the aristocratic element in the province, of which the land speculators composed an important part. He was thereby enabled to make his residence in the city for several months, and to exert a very unfavorable influence on the patriot cause. Gen. Washington, as well as most of the ardent whigs in the province, would have been glad to have him siezed and confined. A motion to that effect was made in the continental congress, but
1 American Archives, 4th series, vol. 2, p. 136, 137. Col. Hist. of N. Y., vol. 8, p. 373.
1
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being earnestly opposed by Mr. Duane, was unsuccessful. But early in October a resolution, aimed principally at Tryon. was adopted, recommending to the several provincial assemblies and com- mitties of safety, " to arrest and secure any person in their respect- ive colonies, whose going at large might, in their opinion, endanger the safety of the colony, or the liberties of America." The movers of the resolution, says Gordon, " had little or no expectation that the New York convention would secure Tryon, but they hoped the sons of liberty at large would effect the business." But, continues Gordon, " Mr. Duane's footman went off to Gov. Tryon in season to give him information of what was resolved," which enabled him to escape on board a vessel in the harbor and eventually to continue his intrigues and outrages against the people he was sent to govern.
No further proceedings in relation to the New Hampshire grants took place under the administration of Gov. Tryon. except that in accordance with his chronic habit of violating the king's prohibit- ory orders against granting lands in that territory, he issued a patent the 28th of October, 1775, to Samuel Avery and others for forty thousand acres of land, and in June 1776, another to Samuel Holland, and associates, for twenty-three thousand acres more; the former tract lying on the west side of the Green mountain, and the other on the east side. Both of these patents bear date after the governor had taken refuge from his indignant people on board the king's man of war. 1
1 Sparks's Washington, vol. 3, p. 8. Irring's Washington, vol. 1, p. 493. Gordon's American Revolution, vol. 2, p. 94, 119, 120. Jour. Cong., Oct. 6, 1775. Bomcroft, vol. 8, p. 32. Albany Records, Patents, vol. 16 and 17.
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CHAPTER XI. COLLISIONS BETWEEN THE NEW YORK AND NEW HAMP- SHIRE CLAIMANTS.
1766-1771.
Brief summary of the preceding chapters - The settlers but little annoyed during the administration of Governor Moore- much troubled when Colden comes again into power in 1769, and also under Dunmore - The patent of Walloomsack, and disturbances in regard to it - Trials of ejectment suits at Albany in June 1770 - John Munro Esq., a New York justice and agent of Messrs Kempe and Duane - He assists the sheriff in his attempts to arrest rioters and to execute writs of possession - Silas Robin- son arrested and carried off to Albany - The militia of Albany county marched to Bennington to aid the sheriff in taking possession of the farms of James Breakenridge and Josiah Fuller - Their discomfiture and its effects.
In the preceding chapters, we have given an account of the origin and character of the respective claims of the governments of New York and New Hampshire, to the soil and jurisdiction of the terri- tory now constituting the state of Vermont. We have seen that the continent of America, from Labrador to Florida, was originally claimed by the English by right of prior discovery ; that the Dutch were the first to explore the Hudson river, and to occupy the lands in its vicinity ; that they claimed that their territory, under the name of New Netherland, extended from Delaware bay on the south to Cape Cod on the north ; that their right to any part of the terri- tory they claimed was disputed and denied by the English, that the settlements of the Dutch in New Netherland and the English in New England commenced about the same time, that their settlements gradually approached and they began to encroach upon each other ; that in consequence of such encroachments a treaty was entered into in 1650, between the Dutch governor and the commissioners of the New England colonies, by which a temporary boundary line was agreed upon, extending from a point on Long Island sound indefinitely to the north, so that it should not come nearer than ten miles to the Hudson river ; that such line was ratified by the States General of Holland as the permanent eastern boundary of the Dutch terri- tory; that the English government did not so recognize it and could not without abandoning the ground it had always maintained that the Dutch were intruders and had no rightful territory what-
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ever; that in 1664 King Charles the second granted the territory claimed by the Dutch to his brother, James Duke of York, and sent across the Atlantic, a naval and military force. to which New Nether- land was surrendered in the autumn of that year; that New Netherland at that time contained less than ten thousand inhabitants, fifteen hundred of whom were upon Manhattan, now New York island ; that the population of Connecticut was then fully equal to that of New Netherland, more than three quarters of which was west of Con- necticut river, the settlements extending on Long Island sound more than seventy miles west of that river and reaching within less than twenty miles of the Hudson; that two years previously the same king Charles had granted the charter of Connecticut extending from Narragansett bay on the east to the South sea or Pacific ocean on the west, disregarding any claim of the Dutch to New Netherland ; that the charter of Massachusetts had been granted thirty years earlier, also reaching westward to the Pacific ocean ; that the descrip- tive language of the charter to the Duke of York was necessarily vague ; that it could not consistently with the long cherished pre- tensions of the English government be otherwise ; that the territory could not be described in the grant to the duke in general terms as New Netherland without impliedly admitting the right of the Dutch who had settled it, and given to it its name; that a description bounding it by the temporary line which had been acknowledged by the States General of Holland as its eastern extent toward New England, was equally inadmissible, for the same reason; that there being no river or range of mountains or other natural object for a boundary between the settlements of the English and the Hudson river, that could be fixed upon, a description was necessarily adopted which, treating the grant as covering only English territory used language sufficiently comprehensive to include the Dutch possessions ; leaving any apparent interference with previous grants to be adjusted when the territory should be reduced to possession by conquest ; that accordingly the grant to the duke was nominally of Hudson's river and all the land from the west side of Connecticut river to the east side of Delaware bay; " that in accordance with this intention of the crown to embrace only the Dutch possessions in the duke's grant, the boundary on the east, was within six weeks after the conquest of New Netherland, curtailed to within twenty miles of the Hudson by the king's commissioners who accompanied the expedition, of whom the duke's governor of the province, then named New York, was one; that this twenty mile line reaching northerly to Lake Champlain is designated as the eastern boundary
15
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of New York on all the English and American maps up to the period of the revolution, including that of the celebrated geographer Dr. Mitchell, published in 1755, under the authority of the English board of trade; that such line was recognized by New York as such boundary for more than three quarters of a century, the first public claim set up by the government of that province, either again'st Massachusetts or New Hampshire, that its territory reached east to Connecticut river was made by Gov. Clinton in 1750. after the grant by Wentworth of the charter of Bennington ; that even Cadwallader Colden, who eventually under the temptation of a rich harvest of patent fees, became a zealous advocate of the ancient right of New York to reach eastward as far as the Connecticut, had as late as 1738, while surveyor general of the province, in an elabo- rate official report for the information of the crown, given the boundaries of the province on all sides of it, in great detail, without making any mention whatever of that river ; and that although the Dutch at the time of the conquest of New Netherland. made no claim to reach eastward beyond the before mentioned treaty line of 1650, yet that they did claim by reason of their trade with the Mohawks and other tribes of the six nations of Indians and of their protecting care over them, to extend westerly to lakes Ontario and Erie, in virtue of which claim continued by their English successors western New York became a part of that province and state, though by no construction whatever could the language of the duke's charter be made to include it.
We have further seen, that by the accession of the Duke of York to the throne, in 1685, his charter title merged in the crown making New York a royal province ; that its eastern boundary, being a twenty mile line, from the Hudson extended northerly to lake Cham- plain, the king, in 1741, commissioned Benning Wentworth. governor of New Hampshire, describing his province as reaching westward until it met his other governments. thus bounding it westerly on New York ; that the country thus included in New Hampshire, lying to the westward of Connecticut river, was then an uncultivated wilder- ness; that Gov. Wentworth, with authority from the king to grant his lands, issued charters of over one hundred townships each of six miles square, within such territory ; that while settlements of the country under these charters were rapidly making, the government of New York procured an order of the king in council, bearing date July 20, 1764, fixing upon Connecticut river as the boundary between the two provinces; that up to that time the territory. thus severed from New Hampshire, had been repeatedly and uniformly recognized
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by the king's government as belonging to that province, and never to that of New York ; that the reasons for this change of jurisdiction were those of state policy, a preference of the crown for the aristocra- tic institutions of New York, to the more democratic institutions of New England, and a desire to extend the area of the former by curtailing that of the latter ; that upon the receipt of the king's order in council annexing the territory west of Connecticut river to New York, lieutenant governor Colden proceeded at once to grant the lands to others than the New Hampshire claimants, and when the latter applied to the New Yor1 governors for a confirmation of those not thus granted, such enormous patent fees were demanded as to make it impossible for them to comply ; that the New Hampshire claimants then appealed directly to the crown for relief ; that the conduct of the New York governors in regard to their lands was severely censured by the colonial secretary, and an order of the king in council made, bearing date July 24, 1767, forbidding in the most positive terms, under the penalty of his majesty's highest displeas- ure, the granting of any more lands whatever within that territory " until his majesty's further pleasure should be known concerning the same;" that the New York governors, notwithstanding this peremptory order of the king, proceeded to grant the lands within the disputed territory, and continued making such grants up to the period of the revolution, having granted more than a million and a half of acres in direct and palpable violation of such order.
We are now to treat of the controversies which arose between the settlers and the New York claimants in regard to the possession of the lands thus covered by conflicting grants.
It has already been seen that Lieutenant Governor Colden's operations in the issuing of patents were suddenly brought to a close, the 1st of November, 1765, in consequence of his inability to procure stamps to authenticate them, as required by the English stamp act. The same difficulty also put a stop to further surveys, warrants for that purpose also requiring stamps. Mr. Colden had patented nearly all the lands for which surveys had been ordered, and when in the summer of 1766 the obstacle occasioned by the stamp act was removed by its repeal, Sir Henry Moore found that it would require considerable time to make the necessary preparations for future grants; and before his patent granting machinery could be put in active operation, the letter of the Earl of Shelburne, of the 11th of April, 1767, came forbidding him in the most peremptory manner, from making any further grants in the disputed territory. This was soon followed by the king's prohibitory
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