USA > Vermont > The history of Vermont, from its discovery to its admission into the Union in 1791. By Hiland Hall > Part 13
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order of the 24th of July, 1767, to which, we have already seen, Governor Moore paid due obedience.
This stoppage of further grants, accompanied as it was by the decided condemnation by the crown of the past conduct of the New York governors, greatly discouraged the patentees of the lands already granted, and for some time seemed to paralyze their opera- tions. During the remaining two years of Governor Moore's administration, little occured to disturb the quiet industry of the New Hampshire occupants. The grantees under that province were inspired by the friendly action of the crown, with new confidence in the validity of their titles, and the numbers and strength of the settlers were largely increased by new arrivals in the territory from the New England colonies, whose people were then, as they have been since, constantly cmigrating to new and uncultivated lands.
Upon thic decease of Sir Henry Moore, which took place Sep- tember 11, 1769, Lieutenant Governor Colden came again to the head of the government, and a new era in the affairs of the territory commenced. We have already seen that Mr. Colden, under color of a new construction of the king's prohibitory order, proceeded at once to violate it. His restoration again to power also aroused to increased activity the claimants under the patents which had been previously issued. Numerous ejeetment suits were immediately brought against the settlers, and other steps were taken to make their grants available.
There was a tract of land in the north-westerly part of Benning- ton, which stood upon a different footing from any other New York grant ; being embraced in a patent issued prior to the charter of the township by New Hampshire. It contained twelve thousand acres, called Walloomsack, which had been granted in 1739, the greater portion of which was within the acknowledged bounds of New York. In the patent, no natural boundaries of the land were mentioned. The description began at a certain marked tree, which must have been in the province of New York near the present village of North Hoosick, and its boundary lines ran by ten different courses and distances around the tract to the place of beginning. It was granted in an awkward and unseemly form, to correspond with the windings of the Walloomsack river, in order to include the rich alluvial land along its banks, and was thus made in violation of the king's standing instructions prohibiting the granting of any tract " whose length should extend along the banks of any river." The patent contained the usual proviso declaring it to be void if the patentces " should not within three years from its date, settle and
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effectually cultivate at least three acres of every fifty of the land granted," which they had not done.1
It was claimed by the patentees that this tract crossed the south- west corner of Shaftsbury and extended in a south-easterly direction some three miles or more into the township of Bennington ; and thus included the farm of James Breakenridge. At the time of the settlement of Bennington it is believed none of the lands embraced by the patent, had been occupied, certainly none of it within the the township ; and it was not until several years after Mr. Breaken- ridge had settled upon it, and had made extensive and valuable improvements, that the existence of a New York claim was made known to him.
The New Yorkers, considering this a favorable patent under which to carry on their attacks upon the settlers, not only demanded of Breakenridge the possession of his farm, and served upon him a writ of ejectment, but procured the appointment of commissioners under the quit rent law of the province, for the puropse of dividing his land among the New York claimants. The commissioners, with surveyors and chainmen, made their appearance on his possessions, October 19, 1769, where they found a considerable number of men collected, some of them having arms and employed mainly in har- vesting corn. The commissioners and their attendants, not relishing the presence of so great a number of people, called on them to disperse, which request not being complied with Justice Munro. of whom we shall learn more hereafter, advanced and read the riot act, but without much effect. No actual violence appears to have been offered, but the New Yorkers believing they had cause to apprehend resistence if they continued their survey, became intimidated and gave up their undertaking. They made report of their proceedings to Lieutenant Governor Colden, who in pursuance of the advice of his council, issued a proclamation for apprehending the offenders as rioters, naming as "the principal authors and actors in the riot." James Breakenridge, Jedediah Dewey (the clergyman of the town), Samuel Robinson, Nathaniel Holmes, Henry Walridge and Moses Robinson. They were soon afterwards indicted as rioters in the court of sessions at Albany, but none of them were ever arrested or brought to trial .?
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1 Ante, p. 69. Albany Records. Lands Patent, Allen's Narratice, 1774, p. 131-2.
2 N. Y. Council Minutes, 12 Dec., 1769. Doc. Hist. N. Y., vol. 4. pp. 615-619. V. Y. Narrative of 1773. Allen's Narrative, 1774, pp. 131- 134. Docket Min. of Court of Sessions.
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The actions of ejectment which were pending before the Supreme Court of the province were to be tried at the term, to be held at Albany, in June 1770. Among these suits were two for lands in Shaftsbury, claimed under a patent to John Small, dated October 22, 1765, four for lands under the patent of Princetown before mentioned, and two for lands in Bennington, patented to Michael Slaughter, May 30, 1765, all of which patents had been issued by Lieut. Gov. Colden, covering lands which had been previously granted by New Hampshire and occupied under its charters. Besides which, there was an action against James Breakenridge, for land in Bennington, claimed under the before described patent of Walloomsack.
Although the settlers had little confidence in the New York courts, they resolved to appear and defend the suits. Proper docu- ments to show their titles under the grants of Gov. Wentworth were obtained from New Hampshire, and JJared Ingersol. an eminent counselor of New Haven, Connecticut, was employed for their de- fense, to be aided by Mr. Silvester, an Albany lawyer. The trial was presided over by Judge Robert R. Livingston, with whom was associated Judge Ludlow, who were two of the king's justices of the province, Attorney General John Taber Kempe and James Duane appeared as council for the plaintiffs. The first case for trial was that of John Small against Isaiah Carpenter. for land in Shafts- bury. The patent of the plaintiff having been produced. and the defendant shown in possession of the land, the counsel for the de- fendant offered in evidence. the New Hampshire charter of the township, bearing date August 20, 1761, four years prior to the plaintiff's patent, together with authentic copies of Gov. Wentworth's commission, and the king's instructions authorizing him to grant lands, but the judges took judicial notice that New York had always extended eastward to Connecticut river, and holding the New Hampshire charter to be null and void, refused to allow it to be read to the jury. A verdict was consequently taken for the plaintiff ; and as the ruling in this case precluded all defense in the others, judgment was rendered for the plaintiffs in all of them without further opposition.1
Ethan Allen, who afterwards became famous in the annals of the state and nation, is first heard of on the New Hampshire grants, in connexion with these trials. He had resided in Salisbury, Connec-
New York Narrative of 1778. Allen's Narrative of 1774, p. 6. Ira Allen's Hist. of Vt., p. 23. Doc. IIist. N. Y., 681 -689. Bill of Exceptions, Small vs. Carpenter, Appendix No. 6.
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ticut, and came to Bennington about this time, was a proprietor under some of the New Hampshire charters, and had taken an active part in preparing the cases for trial. It is related of him that after the trials were over, Attorney General Kempe, with two or three other gentlemen, interested in the New York grants, called upon him and advised him to return to his Green mountain friends and persuade them to make the best terms they could with their new landlords, intimating that however fair their claim might be, it had certainly become desperate, and reminding him of the old proverb, that " might makes right." To this proposal Allen merely replied " that the gods of the valleys were not the gods of the hills." This laconic figure of speech he left to be interpreted by his visitors, adding, only when an explanation was asked by the king's attorney, that " if he would come to Bennington the meaning should be made clear to him." 1
That the judgments thus obtained were inequitable, and if carried into effect would inflict great injustice and oppression upon the settlers, was too plain for argument. The legality of the decision may also be very seriously questioned. If, as we think, as has already been shown, the jurisdiction of New Hampshire, prior to the king's order of July 1764, fixing upon Connecticut river as the boundary, extended westerly to the twenty mile line between New York and Massachusetts prolonged northerly to lake Champlain, then Wentworth's grants were unquestionably valid, having been made within territory which he had clear authority to grant. But, conceding that the jurisdiction was disputed and unsettled, which is the most that could be claimed in behalf of New York, how then stands the decision ? By the principles of the English constitution, the lands in both New York and New Hampshire were vested iu the king, both being royal provinces. Their boundaries, also, might be fixed and changed by him at pleasure. It could not be material to him or to the public, through which of his servants his grants were made, and it would be difficult to find a reason why a grant obtained in good faith from the government of one province, should be declared void, merely because the land by the subsequent settlement of a disputed boundary should happen to fall within the newly established jurisdiction of the other.
There is high English authority against the legality as well as the injustice of these New York decisions. We have seen that Lord Shelburne in his letter to Governor Moore, copied on a pre-
' Ira Allen's Vermont, p. 24.
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ceding page gives it as distinctly his opinion that to whatever province the settlers of lands might be found to belong, on the adjustment of the disputed boundary, "it should make no difference in their property, provided that their titles to their lands should be found good in other respects," and such also appears to have been the opinion of the subsequent colonial secretary. In 1773, Gover- nor Tryon, in addressing Lord Dartmouth, in relation to certain French grants, referred to these Albany trials. saying that " on the footing of original right, our courts determined that the New Hampshire grants were void for want of legal authority in that government," to which the secretary replied as follows: "With regard to the grants heretofore made by the governors of Canada adjacent to Lake Champlain, and by the governor of New Hampshire to the west of Connecticut river, I do not conceive the titles of the present claimants or possessors, ought to have been determined upon any argument or reason drawn from a consideration of what were or were not the ancient limits of the colony of New York. Had the soil and jurisdiction within the province of New York been vested in proprietaries as in Maryland, Pennsylvania, Massachusetts Bay, or other charter governments, it would have been a different question ; but when both the soil and jurisdiction are in the crown, to limit that jurisdiction and to dispose of the property in the soil in such manner as shall be thought most fit; and after what had passed, and the restrictions which had been given respecting the claims, as well on Lake Champlain, as in the district to the west of Connecticut river, by which the king had reserved to himself the consideration of those claims, I must still have the misfortune to think, that no steps ought to have been taken to the prejudice of the claimants under the original titles." To the same purport was a previous letter of Lord Dartmouth, of December 9, 1772.1
By the settlers the justice and legality of these decisions were not only denied, but the integrity of the court in making them was seriously distrusted. It was well known that the lieutenant governor, several members of his council, and also many other leading men of the province, were either patentees of lands or favored petitioners for grants, within the disputed territory. Attorney General Kempe and Mr. Duane, two of the most noted lawyers in the colony by whom the suits were prosecuted, were, as proprietors of Princetown, interested parties in four of the actions in which judgments had been obtained; and Judge Livingston, who presided at the trials,
1 Col. Ilist. N. Y.,vol. 8, pp, 330, 343- 4 and 356-7.
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had, the previous month of November, obtained a patent to himself, his friends and members of his family, of thirty-five thousand acres of land within the disputed district of which he was believed to be the principal, if not the sole owner. Under these circumstances it was perhaps not unnatural that they should have looked upon the forms of trial which had been allowed them as a mere mockery - as the result of a prior determination to annul their titles and deprive them of their possessions; and that they should have felt that the court of law was but a part of the machinery selected and prepared for that purpose. It has been truly said that " there is no kind of injustice so hard to be borne as that which is inflicted in the name of the law :" and when the purity of the judicial fountain from which it flows is distrusted, the wrong becomes doubly intolera- ble. It need not therefore be matter of surprise that the settlers should have earnestly endeavored to find some mode of escape from the threatened injury. 1
In Bennington, then the largest settlement, a town meeting was called to determine what should be done. It was plainly a matter in which all was at stake. The decision of the judges, in effect, annulled all the charters which had been granted by the governor of New Hampshire throughout the territory. If the judgments were suffered to be executed, the settlers would be cast beggars upon the world, and their possessions, which many of them had for years been improving, would pass into the hands of mercenary strangers. On the other hand it would be assuming a fearful responsibility to resist the authority of the law - to brave the power of a govern- ment from which little mercy was to be expected. The king had indeed seen and acknowledged the injustice of the conduct of their enemies, in regranting their lands; they had by petitions, through their agent in London, kept him informed of the hostile measures with which they had been pursued since the decease of Gov. Moore; of the survey of their possessions by New York claimants, and of the numerous suits in ejectment which had been brought against them. Was there not reason to hope that when this new cutrage upon their rights was made known to him, his power and authory would be interposed to stay the hands of their oppressors ? On consideration of the whole subject it was determined, that until a final decision of the controversy by the king, the possessions of the defendants should not be surrendered to the plaintiffs, that the
1 For Livingston's grant of Camden, see Albany Records, Land Papers, vol. 22, pp. 45, 61 ; vol. 26, p. 12 ; vol. 30, p. 4, and Patents, vol. 14, Nov. 13. 1869.
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execution of writs of possession should be resisted by force if neces- sary, and that the farms of Mr. Breakenridge and Mr. Fuller, against whom judgments. had been rendered, should be taken under the special protection of the town. A committee was accordingly appointed to see that those farms were properly and effectually defended.1
It is stated in the New York narrative of 1773, that Allen, when at Albany, becoming satisfied that the New York title would prevail, promised to go home to his constituents and advise their submission to the judgments, and that in this town meeting he did so, but was successfully opposed by Mr. Dewey, who advocated the claims of New Hampshire. There is no doubt that Mr. Dewey, the reverend clergyman of the town, was earnestly in favor of the measures adopted, though the statement in relation to Mr. Allen, so inconsistent with all his other known conduct. seems at least very questionable.
Encouraged by the successful issue of the Albany trials, the New York claimants of the Walloomsack patent, in the month of Sep- tember following, made a second attempt to divide the lands of Mr. Breakenridge between them, but met with quite as decided opposition as before ; whereupon Lord Dunmore, then governor of the province, " issued his proclamation for the arrest of the 'rioters,' Simeon Hathaway, Moses Scott, Jonathan Fisk and Silas Robinson being designated as . the principal authors and actors in the riot and breach of the peace.'" The sheriff of Albany county, with his under officers, aided by John Monro, soon afterwards succeeded in arresting one of their number. This John Monro, under a New York military patent, which he had purchased or contracted for, had seated himself on Little White creek, just within the limits of the western boundary of Shaftsbury. under the patronage of Messrs. Duane and Kempe, the noted New York speculators, with whom he kept up an active correspondence. These friends had procured for him from the governor, a commission as justice of the peace for the county of Albany, and he was not only ready to exercise his judicial functions against the New Hampshire claimants, but also, when occasion offered, to act in the capacity of constable or sheriff's assistant in arresting them, and being a bold, active and meddling person, he was for a long time quite troublesome to the settlers. Silas Robinson, one of those named in the proclamation, resided about two miles to the north of the village of Bennington, and
1 Petitions of Oct., 1769, and Feb. 22 and Oct. 3, 1770, in papers of the old congress, state department, Washington. Ira Allen's History, p. 25.
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early in the morning of the 20th of November, the sheriff. accom- panied by Munro and others. succeeded in arresting him, and by returning with great speed before notice could be given to his neighbors, were enabled to carry him off to AAlbany. Sheriff Ten Eyck appears to have been greatly elated with this exploit, and immediately wrote to Gov. Dunmore, informing him of his successful expedition to Bennington, at the same time telling him, " that from the advice of said Munro and other information he received. he judged it best to return with his prisoner (especially as he was reported to be one of the principal among them). rather than risk his being rescued." The governor wrote a complimentary letter to the sheriff, highly approving his conduct, and directed him to hold his prisoner in custody until he should be released in due course of law. The governor also instructed the king's attorney general to prosecute Robinson for the matter charged against him. Mr. Rob- inson, with fifteen others, were indicted for a riot before the Albany court of sessions, but none of the others were arrested. He was kept in jail until the following October, when he was released on bail.1
During the following winter. attempts were made by the plaintiff's in the ejectment suits, to obtain possession of the lands which had been adjudged them by the Albany court, but with only partial success. The sheriff, accompanied by Munro and some twelve or fifteen others, succeeded, during the absence of Samuel Rose of Manchester, in entering his house, but seeing a large number of his neighbors approaching, apparently to oppose them, departed, direct- ing Mrs. Rose to hold the premises as tenant to the plaintiffs. The party were able to turn Mr. Carpenter of Shaftsbury, out of posses- sion, but the plaintiffs' tenant soon became alarmed for his personal safety, and fled. Against James Breakenridge and Josiah Fuller, the two Bennington defendants, not even a nominal possession was gained. When the sheriff went to execute his writs, he was, says Munro, " opposed by a number of armed men who had shut them- selves up in the defendants' houses, and threatened to blow his brains out if he proceeded." It had became apparent that the judgments of the plaintiffs could not be made available to them without invok- ing the extraordinary power of the country. It was therefore resolved that the posse comitatus, the militia of the country, should be called to the aid of the sheriff.
1 N. Y. Council Minutes, Dec. 18, 1770. Doc. IIist. N. Y., vol. 4. p. 651-3, 671 and 687. Manuscript Letters of Munro to Duane.
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Now came on the great trial at Bennington, which was to determine the strength of New York laws, and the fate of the settlers. Sheriff Ten Eyck made a general summons of the citizens of Albany, and when he left the city for Bennington on the morning of the 18th of July, 1771, he found himself at the head of about three hundred variously armed men of different occupations and professions ; among whom, of the gentry of the town, was the mayor, several aldermen, and four eminent counsellors at law, viz : Mr. Silvester, Mr. Bleecker, Robert Yates and Christopher Yates. The party halted for the night at Sancock, a place situated on the Walloomsack creek, a little west of the present village of North Hoosick, and having received some additions to its numbers, by new levies on the way, took up its line of march the next morning for the residence of Mr. Breakenridge, some six or seven miles distant.
The settlers had received notice of the approach of the sheriff and his posse, and had prepared themselves for their reception. Mr. Breakenridge's house was situated about a mile from the New York line, at the foot of a slight ridge of land running east and west, then covered with woods; along the southerly side of which ridge ran the road, by which the posse would naturally come. In the woods so far behind the ridge as to allow only their heads and the points of their muskets to be obscurely seen among the trees from the road, were posted nearly one hundred well armed men. Across a cleared field to the south-east of the house in sight, and within gunshot of it, was another somewhat smaller body of armed men. The house itself had been prepared against an assault by strong barricades for the door, and loop holes in the walls from which to fire upon the assailants, and within it were eighteen resolute men, well supplied with the proper means of defense, and provided with a red flag to be hoisted from the chimney, to notify their friends without, when- ever their assistance should be needed. The family of Mr. Breaken- ridge had taken up their temporary abode at a neighbor's, and in this condition the settlers calinly waited the approach of their adversaries.
When the advance of the sheriff's party reached the bridge across the Walloomsack, half a mile to the northwest of Breakenridge's, they found it guarded by " six or seven men in arms who said they had orders to stop them." However after some conversation it was agreed that a few of the party might pass for the purpose of seeing Mr. Breakenridge, upon condition that no more should cross until their return. These, headed by mayer Cuyler, were then conducted near Mr. Breakenridge's house, where they found some twenty or
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thirty others. On being inquired of why so many men were assem- bled with the apparent design of opposing the sheriff, Mr. Breaken- ridge gave them for answer that he had no further concern with the farm, "and that the township had resolved to take the same under their protection and that they intended to keep it." This the mayor told him was a mere evasion, which would not excuse him from the consequences that might ensue ; " but that whatever blood should be spilled in opposing the king's writ would be required from his hands." After more discourse it was agreed that Mr. Breakenridge should have some further communication with his friends ; that the mayor and his party should return to the bridge where they should be informed in half an hour of the result of his conference.
At the end of half an hour the sheriff, who had now reached the bridge with his whole party, was notified by a message from the settlers that the possession would not be given up, " but would be kept at all events." Whereupon the sheriff gave order for the posse to march forward to the house. But only a small portion of them could be persuaded to move, and most of those with much apparent reluctance. The , men comprising the sheriff's party had by this time obtained an inkling of the kind of reception they were likely to meet, and were unwilling to expose their lives in a cause in which they had no interest, and of the justice of which they were not well assured. In fact a majority of them disapproved of the conduct of the speculators, and sympathized with the settlers, in their defense of their possessions.
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