USA > Vermont > The history of Vermont, from its discovery to its admission into the Union in 1791. By Hiland Hall > Part 5
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the colony of Connecticut, to the sound between Long Island and the main, and then easterly along that sound to the Atlantic ocean."
If Mr. Colden had conceived that Connecticut river could, by any possibility, have been the eastern boundary of any part of New York, he would most certainly have so stated. Instead of which he describes its eastern boundary as a straight line running southerly along the western bounds of the two provinces of Massachusetts and Connecticut, without taking any notice of the river, or of the line of fifty or sixty miles on the north bounds of the latter pro- vince running directly west instead of south, which on the supposi- tion that New York reached to Connecticut river, would become a part of its boundary.
Mr. Colden was also asked whether any of the reputed boundaries of New York " are in any parts thereof disputed, what partsand by whom."
To this inquiry he answered to the effect that disputes existed between proprietors of lands near the New Jersey line, and that similar disputes were likely to arise near the Pennsylvania line, when the lands should be settled ; that the boundaries between New York and Canada were undetermined, that the French had built a fort at Crown Point, and made large claims of territory which should be opposed, etc., etc.
In regard to the eastern boundary he declares that the line with Connecticut is " entirely settled by agreement," and relative to the line with Massachusetts, uses the following language :
" The boundary between Massachusetts bay and New York is every where disputed. By the Massachusetts bay charter, that colony is to extend as far west as Connecticut. The question is whether it shall extend as far west as to Connectient, or extend as far west as Connecticut does. The difference is so considerable, that it takes in near as great a quantity of land, as the whole of what is not disputed. It is probable, they may at last make their claim good, by the numerous settlements they have already, and are daily making upon it."
Without noticing at present the language or construction of the Massachusetts charter, to which Mr. Colden refers, it may be re- marked that the disputes to which he alludes, are doubtless, those which have been mentioned, as existing between the border settlers, and that he seems to admit that the Massachusetts claim to go west as far as Connecticut does, is likely to prevail. He makes no claim to lands to the northward of Massachusetts. 1
1 Doc. HIist. N. Y., vol. iv, p. 171, 177-179. Col. Hist. N. Y., vol. 6, p. 121 - 125.
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EARLY HISTORY OF VERMONT.
As early as the year 1731 the assembly of Massachusetts passed an act to provide for the adjustment of the boundary question, which was communicated to the governor of New York and by him laid before the assembly of that province; and after that, several proposals were made by one government or the other, and conferences were held or attempted by their agents for the purpose of settling it, but for a long period without success. At length the disturbances on the borders became so serious that the attention of the Board of Trade was called to the subject. who summoning before them the agents of the respective provinces. then in England, and having heard what they had to offer, on the 25th of May 1757. made a representation of the case to the king, in which they say, that " upon a full consideration of the matter and of the little probability there is that the dispute will ever be determined by any amicable agreement between the two governments, it appeared to us, that the only effectual method of putting an end to it and preventing those further mischief's which may be expected to follow, so long as the canse subsists, would be by the interposition of your majesty's authority to settle such a line of partition, as should upon a consideration of the actual and ancient possession of both provinces, without regard to the exorbitant claims of either, appear to be just and equitable." The board further say " We were of opinion, that a line to be drawn northerly from a point on the south boundary line of Massachusetts bay, twenty miles due east from Hudson's river, to another point twenty miles distant due east from the said river, on that line which divides the province of New Hampshire and the Massachusetts bay, would be a just and equitable line of division between your majesty's provinces of New York and the Massachusetts bay." They therefore recommend the establishment of such boundary line by his majesty's order in council. This they think, may be properly done by the consent of the agent of Massachusetts already given, though the soil and jurisdiction of that province had been granted by royal charter.1
The line thus recommended by the Board of Trade not being quite satisfactory to either of the provinces, and the right of the crown to interfere with the boundary of Massachusetts, which was held by royal charter, not being admitted, no authoritative determination of it was made by the king. The question still remaining open and the border disturbances continuing, the Earl of Shelburn, by com- mand of the king, on the 11th of Dec. 1766, addressed letters to the governors of the respective colonies, earnestly recommending that . of-
1 Col. Ilis. N. Y., vol. 7, p. 223- 4. Smiths, N. Y., vol. 2, p. 303-9.
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fertual measures be taken to settle every difference relative to their boundaries, by commissioners appointed from each for that purpose." 1
In accordance with this recommendation the assemblies of both provinces appointed agents or commisioners for that purpose, who met at New Haven, in the colony of Connecticut, Oet. 1, 1767, and continued in conference on the subject for several days, but separated without coming to an agreement.
The claims of the respective parties were however, stated in writing with the grounds on which they rested, and several proposals for an adjustment were made on each side, of which it may be worth while to take some notice.
The claim of New York to extend cast to Connecticut river, was based upon the charter of King Charles the second, to the Duke of York in 1664, which purported. as has been before seen to grant him " Hudson's river and all the lands from the west side of Con- nectient river to the east side of Delaware bay."
The Massachusetts commissioners made a claim to extend westward from the Atlantic ocean to the South sea, under the charter of King William and Queen Mary, of Qet. 7. 1691 ; but the language of that part of the charter specially appropriated to the description of the territory granted, only made it reach "towards the South sea, or westward as far as the colonies of Rhode Island, Connecticut and the Narragansett country." If they had been content to claim under this charter that it covered the Massachusetts territory westward to within twenty miles xofthe Hudson. by making it reach as far west- ward as the colony of Connecticut did, there would have been plausi- bility at least in the interpretation; for though its language is confused, that seems to have been its most probable meaning. But by claiming farther than Connectient extended they were obliged to rely on the recitals and general scope of the charter, which though strongly favoring their construction, might yet be considered as leaving the matter in doubt.
The principal reliance of the Massachusetts commissioners was, however, upon their title under the grant of King James the first to the council of Plymouth, of November 3, 1620, of New England, extending from the fortieth to the forty-eight degree of north lati- tude, and from the Atlantic ocean on the east to the Pacific on the west ; and the sale and conveyance, on the 19th of March, 1027, by the said council of Plymouth to Sir Henry Roswell and his associates of a portion of that territory. This sale and conveyance was of all
' Col. Ilist. N. Y., vol. 7, p. STU.
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that part of America between the Atlantic ocean on the east and the Pacific ocean on the west which is situated between two lines of latitude, the one running from a point three miles to the south of Charles river and the other from a point three miles to the north of the Merrimac, which comprehended all the territory in controversy.
The charter of King Charles, of 1628, constituting Roswell and his associates a corporation withi powers of government, by the name of the governor and company of Massachusetts Bay, and confirming the grant from the council of Plymouth, had indeed, been vacated in Chancery in England in 1684; yet, as the sale and conveyance from Plymouth company was clearly valid without the assent of the king and needed not his confirmation, it was still left in full force. 1
The New York commissioners sought to avoid the effect of this conveyance of the Plymouth company, by refering to a proviso in the king's charter to that company, that the lands described "were not then " (1620) "actually possessed or inhabited by any other . christian prince or state," and by arguing therefrom that the grant, at least so far as it regarded New Netherland, was inoperative. But as there could be no pretence that the Dutchi at that time "actually possessed or inhabited" more that a fractional part, if any, of the territory in dispute, the argument did not appear to be entitled to much consideration.
At this conference after offers by the Massachusetts commis- sioners to agree first upon a line twelve miles and then upon one sixteen miles from the Hudson, and by the commissioners of New York of a thirty and then a twenty-four mile line, the commissioners of Massachusetts finally offered to adopt the line which in 1757, had been recommended by the board of trade, viz.
" That a straight line to be drawn northerly from a point on the south boundary of the Massachusetts bay, twenty miles due east from Hudson's river, to another point twenty miles distant due east from the said river, on that line which divided the province of Massachusetts bay from New Hampshire, be the eastern boundary of the province of New York."
To this line the commissioners from New York objected, asserting their belief that the board of trade fixed upon the line under the supposition that the course of the Hudson was due north and south, whereas its course was considerably to the east of north, and that therefore the line they proposed would come nearer to the river thian
11-12
' For the descriptive language of these grants, see ante, chap. II, p. 29-81.
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they intended ; and they proposed in lieu of it, a line twenty miles from the Hudson measured by lines at right angles to the general course of the river, instead of upon east and west lines.
Upon this small difference the commissioners separated without coming to an agreement.1
The question remained open between five and six years longer when commissioners appointed and duly authorized by the respective provinces met at Hartford, and, on the 18th of May 1773, executed in presence, and with the approval, of the governors of the two provinces, an agreement by indenture, by which it was declared that " A line beginning at a place fixed upon by the two governments of New York and Connecticut, in or about A. D. 1731, for the north west corner of a tract of land commonly called the Oblong, or equivalent land ; and running from the said corner north 21 degrees 10 minutes and 30 seconds east, as the magnetic needle now points, to the north line of the Massachusetts bay, shall at all times hereafter be the line of jurisdiction between the said province of Massachusetts bay and the said province of New York, in all and every part and place where the said province of New York on its castern boundary, shall adjoin on the said province of the said Massachusetts bay."2
This line though described in different language, is believed to be substantially the twenty mile line from the Hudson, which had been recommended by the board of trade in 1757 as the ancient castern boundary of New York, and which had been understood to be such from the time of the action of the king's commissioners who accom- panied the expedition for the conquest of New Netherland in 1664. The antiquity and high authority of this line, though well known both in New York and Massachusetts, was not mentioned by the commissioners of either in any of their arguments, for the very plain reason that each of the parties desired to go beyond the line and thus to gain additional territory.
Thus the long pending controversy in regard to the eastern boundary of New York, so far as that province bordered on Massa- chusetts, was finally terminated. But the Massachusetts commis- sioners were not authorized to compromise any right which that province might have to territory west of Hudson's river, and hence, as will have been noticed, the agreement only designates the line fixed upon as the castern boundary of New York, and not as the western boundary of Massachusetts.
1 Journal N. Y. Assembly, Nov. 25, 1767.
2 Jour. N. Y. Assembly, Jan. 12, 1774. Jour. Congress, Sept. 29, 1785.
6
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EARLY HISTORY OF VERMONT.
After the close of the revolution in 1784, the state of Massachu- setts presented a petition to the congress of the United States alleg- ing that the state of Massachusetts under the charter of King James, in 1620, to the council of Plymouth. and the sale and conveyance in 1627, by said council to Sir Henry Roswell and his associates and successors were entitled to all the territory between the line of lati- tude of forty-four degrees and fifteen minutes, and that of forty-two degrees and two minutes north, and extending west from the rivers Merrimack and Charles to the Pacific ocean, that a portion of said territory was claimed by the state of New York, and praying that a court might be constituted agreeably to the articles of the confedera- tion for the trial and decision of their claim.
In answer to this petition, commissioners were agreed upon and appointed, and a time and place was fixed for a hearing of the con- troversy, but before any trial, the commissioners from the two states being duly authorized for that purpose, met at Hartford, and on the 4th of December, 1786, agreed upon the terms of a compromise, by which Massachusetts relinquished all claim of jurisdiction as a government over the lands claimed by the state of New York, and the state of New York ceded and granted to Massachusetts the right of property to and in over two hundred and thirty thousand acres between the Oswego and Chenango rivers. New York also granted the right of soil to Massachusetts in all that part of the state of New York lying west of a line beginning at a point on the north line of Pennsylvania, eighty-two miles west of the north-east corner of that state, and running from thence due north, through Seneca lake to Lake Ontario, excepting therefrom one mile in width along the eastern branch of Niagara river. This cession of New York, covered about six millions of acres of land, and comprised a territory equal in extent to the present entire state of Massachusetts.1
-
This relinquishment by New York of so great an extent of terri- tory is very conclusive evidence of the strong apprehension enter- tained by her statesmen, that the claim of Massachusetts was likely to prevail if brought to a legal determination - and tends to confirm the correctness of the view which has been hereinbefore taken of the weakness of the claim of that colony to reach eastward to the Connecticut river.
In the next chapter the eastern boundary of New York, against New Hampshire will be considered.
1 Jour. Cong., June 3, 1784, June 9, 1785, and Oct. 8, 1787. Turner's Holland Purchase, p. 325. Street's N. Y. Council of Revision, p. 153 - 156, in note.
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CHAPTER V. THE EASTERN BOUNDARY OF NEW YORK ON NEW HAMPSHIRE. 1741- 1764.
New Hampshire in 1741, declared by the king to extend westward to New York - New York bounded east by a twenty mile line from the Hudson and Lake Champlain - Action of the king and the officers of his govern- ment in relation to it - Fort Dummer - Lands granted by Massachusetts west of Connecticut river - Official acts and declarations recognizing the western extent of New Hampshire - Maps and geographical descriptions prior to the king's order of July 20, 1764, showing New Hampshire to reach westward to within twenty miles of the Hudson and to Lake Champlain.
T THE extent westerly of the province of New Hampshire was not claimed, like that of Massachusetts, to be founded upon a royal charter, but upon the fact that by order of the crown it reached westward from the Atlantic to his majesty's province of New York, and that the eastern boundary of New York when the king's order was made, was a line running from Long Island sound parallel to the Hudson, to Lake Champlain. Many historical facts have already been adduced to show that such was understood to be the boundary of New York, and others more particularly applicable to its limits upon New Hampshire, will be presented hereafter. But it will first be proper to take some notice of the origin and progress of the colony of New Hampshire, prior to the commencement of its bound- ary controversy with New York.
In November 1629, the next year after the confirmation of the grant by the council of Plymouth to Sir Henry Roswell and his asso- ciates of the province of Massachusetts, before mentioned, Captain John Mason, secretary to the council of Plymouth, obtained from that company a patent under its common seal of all that part of New England " lying upon the sea coast, beginning from the middle part of Merrimack river, and from thence to proceed northwards along the sea coast to Piscataqua river, and so proceeds up within the said river and to the farthest head thereof ; and from thence north westwards until three score miles be finished from the first entrance of Piscataqua river ; and also from Merrimack through the said river and to the farthest head thereof, and so forwards up into the lands westward, until three score miles be finished; and from thence to cross over land to the three score miles end accounted from Piscata-
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qua river, together with all islands and islets within five leagues dis- tance of the provinces."1
This territory, after the name of the county in England in which Mason resided, was called New Hampshire. A portion of it, came in direct conflict with the charter of Massachusetts of earlier date, being bounded on the south by the river Merrimack, while that of Massachusetts reached " three miles to the northward of any and every part " of that river. Upon any construction of Mason's grant its inland breadth could not exceed sixty miles, and by refer- ence to a map it will at once be perceived that it would fall some twenty or thirty miles short of reaching westward even to Connec- ticut river. All lands lying west of this grant to the Pacific ocean as far northward as a line of latitude running through a point three miles north of the source of the Merrimack, in latitude about forty- three and a half degrees north, was claimed to be within the charter limits of Massachusetts, and indeed, seem to be embraced by its language. Massachusetts also claimed with much less apparent rea- son, that her territory extended eastward to the Atlantic ocean and northward to the same line of latitude. This eastern extension of ter- ritory, if admitted, would include nearly all of Mason's grant in Massachusetts. At the time of this grant there were several detached settlements within it, and a large portion of the settlers favoring the claim of Massachusetts, she succeeded in establishing jurisdiction over it, and maintained it for about forty years. In 1679 the matter having been brought before the king in council, the claim of Massa- chusetts to extend its northern boundary line from the source of the Merrimack eastward to the Atlantic was declared to be unfounded, and the four towns of Portsmouth, Dover, Exeter, and Hampton, were determined to be without the bounds of that province. It being admitted that Mason, under his grant from the council of Plymouth, had no right to exercise any powers of government, a commission was issued by the crown for the government of the colony, and from that time down to the period of the revolution, New Hampshire continued to be governed by commissioners as a royal province."
In 1737 a controversy which had long existed between Massachu- setts and New Hampshire in regard to their boundaries was heard at Hampton, in the latter province, by commissioners appointed by the crown from other colonies. On the part of Massachusetts it was contended that her northern boundary should be a line running
Haz., vol. 1, p. 289. Story on the Constitution, vol. 1, 64. Belknap, 8, Farmer's ed.
" Farmer's Belknap, chap. iv, and p. 449-452. . Story, 65-68.
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three miles to the northward of the mouth and of every part of Merrimack river to a point three miles north of the crotch where the rivers Pemigewasset and Winnipiseogee unite and form the Merri- mack, and from thence due west to the South sea; while on the part of New Hampshire it was claimed that the boundary line should commence three miles north of the mouth of the Merrimack and thence run directly west until it should meet with his majesty's other governments. The commissioners instead of deciding the question made an evasive and conditional report, declaring in substance that if the charter of King William in 1691, granted all the lands which had been granted by King Charles the first, then the commissioners found that the line claimed by Massachusetts was the true line ; but if otherwise, then that line should be as claimed by New Hampshire, referring the question of the construction of the charters to the decision of the king in council. An appeal being taken to the king and heard by him in council, a decision was made in 1740, which, disregarding the question contested before the commissioners and submitted by them, declared the northern boundary of Massachusetts to be "a similar curve line pursuing the course of the Merrimack river, at three miles distance, on the north side thereof beginning at the Atlantic ocean, and ending at a point due north of Patucket falls, and a straight line drawn from thence due west until it meets with his majesty's other governments." This decision was highly favorable to New Hampshire, carrying much the greater part of her southern line about twelve miles farther south than had ever been claimed by that province, and cutting off from Massachusetts a strip of territory of that width along nearly the whole of her northern boundary.
For the previous forty years the governor of Massachusetts, under the direction of the crown, had also acted as governor of New Hampshire. each of the two provinces having distinct colonial councils and assemblies ; but on the adjustment of the boundary question, Benning Wentworth was appointed to the sole governorship of New Hampshire. His commission, which bore date June 3, 1741, described "our province of New Hampshire, within our dominions of New England in America," as extending westward until it should " meet with our other governments."1
At the date of the commission to governor Wentworth, and for a long time before and ever afterwards until the period of the revo-
1 Belknap chap. 17 and 18. Doc. His. N. Y., vol. 4, p. 532. For governor Wenthworth's commission, see Appendix No. 2.
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EARLY HISTORY OF VERMONT.
lution, both New Hampshire and New York were royal colonies, whose limits and extent by the English constitution were subject to the pleasure of the king. He might fix or alter them whenever he thought proper and in such manner as he chose. The boundaries of such royal colonies were sometimes pointed out in specific and intelli- gible language by a formal and express order. But such was not always the case. So little value was placed by government officials upon wild and uncultivated territory in a distant country, that the importance of definite descriptions of it was seldom properly appre- ciated, and the will of the monarch in regard to the limits of a province was often left to be ascertained and determined by evidence of a circumstantial character, such as acts of the crown and its officers indicating that certain territory was either within or without the jurisdiction and government of a particular colony ; or by the recogni- tion or even acquiesence of the king in the exercise of acts of jurisdiction over such territory. A colony whose early boundaries had been particularly specified by charter or in some other manner, might be shown to have been enlarged or contracted by such indirect historical evidence.
The colony of New York itself furnishes a striking example of this character. The only direct action of the crown describing the western boundary of New York, is that which is found in the charter to the Duke of York, granting him, as we have seen, " Hudson's river, and all the lands from the west side of Connecticut river to the east side of Delaware bay." Now if it should be conceded that by "Delaware bay " was intended the whole of the river of that name which empties into it, which is giving the language the most liberal construction possible, there is still beyond that river, and between it, and the lakes Erie and Ontario-a territory of more than fifteen thousand square miles in extent, which sometime before the revolution was considered as forming a portion of New York and was claimed as such, and which now constitutes a part of the state. And yet, for this extension of territory beyond the charter language no declaration of the king can be found. It rests solely upon circumstantial evidence, relating mainly to the acquiescence of the crown in claims and acts of supervision by the province over the Indians inhabiting such territory.
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