In the preceding letter we have endeavored to present a brief but clear exhibit of the titles respectively of Pennsylvania and Connecticut. The cursory reader, seeking amusement and studious of novelty, may deem such general view sufficient. But is almost every interesting event in the history of Wyoming, had its origin in these conflicting claims, it seems fitting that a more full and detailed statement should be made of them, then has been attempted by any recent historian.
For half a century the subject occupied no inconsiderable share of public attention; engaged the pens of many a ready writer, and enlisted on one side or the other, both in England and America, the best talent and the ablest council that a popular controversy, embracing millions in value, or liberal retaining fees could command. Every weapon of party warfare was employed with zeal. The newspaper paragraph, the eloquent debate, the legislative protests, elaborate essays, and numerous pamphlets now before me, a show the interest and ability which the contest awakened. If the matter itself be regarded as dry and forbidding, we can promise some relief from the enlivening incident, more from studied brevity, and most from the assurance that this and the succeeding letter, are indispensable to a just comprehension of the subject.
Shaking then from these multitudinous papers, the venerable dust with which antiquity has shrouded them, we proceed with cheerful alacrity to our task.
It was injected: 1st. That the crown must have been deceived, and the Connecticut Charter could never have been intended to cover so vast an extent of territory as was claimed under it.
In reply it was said-that it embraced no more than the Charter of Massachusetts: that those grants were, first state reasons, purposely extensive. That being made to a numerous company, it was less comparatively than that to Mr. Penn, an individual, that the Colonial Congress at Albany, in 1754, acting in reference to conflicting English and French claims, made a report containing this express recognition, viz: "the ancient colonies of the Massachusetts Bay and Connecticut, were by their respective charters made to extend to the South Sea," which was transmitted by Messrs. Penn, Peters, Norris and Franklin, to the government in Philadelphia, and entered on the records.
It was injected-2nd. They in establishing the County of Litchfield, the act declares it located in the northwest corner of the colonies; acknowledging, therefore, that the Charter extended no further west; or that, if before the Charter had greater limits, this was a waiver of all claim beyond the bounds assigned to Litchfield.
In answer it was said: that the relinquishment of so important an interest could not, by any fairness, be predicated upon an expression, so manifestly in relation to the great question of Charter bounds, inconsiderate and inapplicable. That if a farmer had a plantation half a mile wide, east and west, and two miles long, north and south-100 acres on one and in cultivated fields-the rest a wilderness-were he, in a lease, to speak of the most distant cleared field adjoining the forest, is the outer limits of his farm, no one would assume it an abandonment of what lay beyond, being 4/5 of his whole estate. The construction would be forced and unnatural. And indeed it was maintained that the absurdity of such plea was evidence that no sufficiently valid objection existed, or one so preposterous would not be urged.
3rd. A far more grave and weighty objection next presents itself for consideration; which was carried out before the King and council, and engaged the first talents on the stage of action at that period, distinguished for eminent legal abilities. Platt, afterwards Earl Camden; Wedderburne, afterwards Lord Loughborough, Thurlow, Dunning and Jackson, gave opinions upon the point.
The early settlements upon the Hudson River by the Dutch from New York to Albany, are presumed to be familiar to the reader. On the west, the claims of the Dutch were clearly defined, the Delaware River being the boundaries; but east and north, their limits were extremely indefinite. Hence the most spirited contest arose between them and the adjoining colony of Connecticut, in respect to the division line between the two provinces. Irving, in the delightful pages of his Knickerbocker, has found in that dispute materials for more than one of his most pleasing chapters. For a time Civil War raged, the Dutch pressing their eastern boundary towards Connecticut River, to which they claimed; the people of that colony, with a zeal and for tenacity in no way inferior, urging their limits west toward the Hudson. At length, in 1650, "articles of agreement were made and concluded at Hartford, on Connecticut River, betwixt the delegates of the honored commissioners of the United Colonies (of Hartford and New Haven,) and the delegates of Peter Stuyvesant, governor of New Netherlands:" we quote so much as is germane to the matter in hand.
"Concerning the bounds and limits betwixt the English United Colonies, and the Dutch province of New Netherlands, we agree as followeth:-
"The bounds upon the main to begin at the west side of Greenwich Bay, being about four miles from Stamford, and so to run a northerly line, 20 miles up into the country; and after as shall be agreed by the two governments, of the Dutch and New Haven, provided this said line come not within ten miles of Hudson's River. And is agreed that the Dutch shall not, at any time hereafter, build any house or habitation within six miles of said line. The inhabitants of Greenwich to remain, (till further consideration thereof be had,) under the government of the Dutch."
This was the first amicable essay towards a settlement of the disputed line. "This agreement," says an able writer, whose work was printed nearly 50 years ago, "does not appear to have been ratified, or the terms satisfactorily observed. New difficulties succeeded; new complaints were made, and new claims advanced. In this state matters continued till the Charter of 1662, which comprehended both the New Haven and Connecticut plantations, and until the conquest of the Dutch in 1664. Their territory, with all its appendages, had been transferred to the Duke of New York, by a royal patent or Charter, dated March 12, 1664. On the 26th day of April, a commission had been given to Col. Richard Nichols, too dispossessed the Dutch, and put the Duke in possession, which the Colonel accomplished in August; whereupon it became necessary to settle the extent of the Dutch plantations eastward, and thereby to ascertain the divisionary bounds of the Duke's patent, and the patent of Connecticut. For the last mentioned being the earliest, the other could not effectually convey any part of what was before conveyed from the crown. Though the Duke's Charter contained within its premises, all land between Connecticut River and the Delaware, if the colony contended that a part of the land thus granted to him, was theirs by their older Charter. But how much of it was vested in them, so as not to pass to him, or, in other words, where the division line ought to become was still an unsettled question, the former settlement not being satisfactory or conclusive. Here was a direct inference between the Dutch claim, to which the Duke had now succeeded, and that of the colony. Each party insisted on Long Island, and the track between Connecticut River and a line a few miles east of Hudson’s River.
As the colony of Connecticut had now a prince of the blood royal, and presumptive heir of the crown, to contend with, it became a serious object with them, to obtain as early and as favorable an adjustment of the line as possible. Commissioners had come over with extensive powers to adjust disputed questions, at issue between the colonies. New York was now the property of the King's brother, who was anxious he should hold in peace, and especially that all contest should cease in respect to the boundary claimed by him. King Charles by his commissioners, transmitted a letter to the Connecticut colony, full of gracious expressions. As it is not long, we will give the letter entire:-
Trusty and well beloved, we greet you well, having according to the resolution we declared to Mr. John Winthrop, at the time when we renewed your Charter, now send these persons of known abilities and affection to us, that is to say, Col. Richard Nichols, etc., our commissioners, to visit these our several colonies and plantations in New England, to the end in that we may be the better informed of the state and welfare of our good subjects, whose prosperity is very dear to us. We can make no question but that they shall find that reception from you, which may testify your respect to us, from whom they are sent for your good. We need not tell you how careful we are of your liberties and privileges, with the ecclesiastical or civil, which we will not suffer to be violated in the least degree; and that they may not be is the principal business of our send commissioners, is likewise to take care that the bounds and jurisdictions of our several colonies there, maybe clearly agreed upon; that everyone may enjoy what of right belongeth unto them, without strike or contentions; and especially that the natives of that country, who are willing to live peaceably and neighborly with our English subjects, may receive such justice and civil treatment from them, as may make them the more in love with their religion and matters; so, not doubting of your full compliance and submission to our desire, we bid you farewell. Given to our court, at White Hall, the 23rd day of April, 1664, in the 16th year of our reign. By his Majesty's command.
The colony of Connecticut, more than ever desirous to have the disputed line finally settled, immediately, that is, Oct. 13, 1664, appointed a committee, consisting of Mr. Allen, Mr. Gould, Mr. Richards, and Mr. Winthrop, to repair to New York, to bear the congratulations of the colony to the Royal commissioners; for the period was eminently distinguished by ceremonial politeness; and the committee was expressly authorized, if possible, to issue the bounds between the Dukes patent and ours."
The second adjustment of boundary grew out of this mission. Long Island was adjudged to New York, and the contested line was established the thus.
"Determination of his Majesty's commissioners, respecting the boundaries of his Royal Highness to the Duke of New York's patent, and the colony of Connecticut.
"By virtue of his Majesty's commission, we have heard the differences about the bounds of the patents granted to his Royal Highness, the Duke of York, and his Majesty's colony of Connecticut; and, having deliberately considered all the reasons alleged by Mr. Allen, Secretary, Mr. Gould, Mr. Richards, and Capt. Winthrop, appointed by the assembly held at Hartford, the 13th day of October, 1664, to company John Winthrop, Esq., governor of his Majesty's colony of Connecticut, to New York, and by Mr. Hall and Capt. Young, of Long Island, why the said Long Island should be under the government of Connecticut, which are too long here to be recited; we do declare and order, that the southern bounds of his Majesty's colony of Connecticut is the sea; and that Long Island is to be under the government of his Royal Highness the Duke of York; it is expressed by plain words in the said patents respectively. And also by virtue of his Majesty's commission, and by the consent of both the governor and the gentlemen above named, we also order and declare, that the Creek, or river, called Mamarononeck, which is reputed to be about 12 miles to the east of West Chester, and a line drawn from the east part, or side, where the freshwater falls into the salt, at the high water mark, north-northwest to the line of Massachusetts, be the western bounds of the said colony of Connecticut; and the plantations lying westward of that creek, and line so drawn, to be under his Royal Highness’s government; and all plantations lying eastward of the creek and line, to be under the government of Connecticut.
Richard Nichols," etc.
The assent of the agents was expressed as follows, viz:
"We, underwritten, on behalf of the colony of Connecticut, have assented unto this determination of his Majesty's commissioners, in relation to the bounds and limits of his Royal Highness, the Duke’s patent, and the patent of Connecticut.
John Winthrop, etc. November 30, 1664."
The plantation of New Haven, though included in the Charter to Connecticut, had nevertheless maintained their own separate government, and refused to join with the other colony, until after this determination of his Majesty's commissioners; so they were not as yet parties to the settlement. After much correspondence and negotiation, however, they concluded to unite under the Charter; and accordingly, on the fifth of January, 1665, communicated their final acquiescence, in a letter, in which (among other things not directly pertinent to this point,) they say, "we now signify, that having seen the copy of his Majesty's commissioners determination, (deciding the bounds between asked his Highness the Duke of York, and Connecticut Charter,) we do declare submission thereunto."
Scarcely had the lines been settled, when the vicissitudes of war again threw the colony of New York into the hands of the Dutch, which they retained until 1674, when, by the Treaty of Peace, it was finally restored to the British Crown. A new Charter, with precisely the former boundaries, was forthwith issued to the Duke of York, and the ancient dispute with Connecticut revived.
Col. Dungan having been appointed governor of New York, Connecticut, in 1683, appointed commissioners to repair to that place, to bear the congratulations of the colony and his arrival, and to adjust, if practicable, for the third time, the contested boundary. Accordingly, the governor, Major Gould, Capt. Allyn, and Mr. William Pitkin, were designated, and set forth on their mission. A new line was fixed upon, which constitutes the present limits between Connecticut and New York.
The whole of this long contest is so far detailed, and regarded important in relation to Wyoming history, because it is asserted to have been a relinquishment on the part of Connecticut of all claim west of New York. It was declared, that the line fixed upon "shall be the western bounds of the said colony of Connecticut, and the plantations lying westward of that creek, and line so drawn, to be under his Royal Highness’s government; and all plantations eastward of that creek and line, to be under the government of Connecticut." It is said these expressions are clear and unequivocal, and what ever rights Connecticut might have previously had to the Susquehanna lands, that declaration was a waver, or relinquishment of them, forever.
Gov. Penn sets forth this view of the case with marked emphasis. "The uncertainty," says he, "in the bounds and extent of the Connecticut Charter, as well as of other of the new England grants, occasioned a Royal commission to issue, so early as within two years after the date of that Charter, for the declared purpose of settling the bounds and limits of their several charters and jurisdiction; in consequence of which, a north-northwest line, drawn from Mamaroneck River to the line of Massachusetts, was declared, and expressly fixed and established to be the western bounds of the colony of Connecticut, which boundary was then solemnly assented too, ratified and confirmed, by the governor and commissioners of the colony."
Still more full, authoritative and in fact, was the opinion of the Attorney General of the Crown, Mr. Pratt, given in 1761, in answer to the following query by the proprietary government, to wit: "whether the people of Connecticut had any color or pretense under their Charter to set up this right to this track of land westward of New Jersey through Pennsylvania, as far as the South sea; and what is most advisable for the proprietary to do in case the government of Connecticut persist in this claimant?
"If all the colonies in North America," says Mr. Pratt "were to remain at this day bounded in point of right as they are described in the original grant of each, I do not believe there is one settlement in that part of the globe that has not been encroached upon, or else usurped upon its neighbors, so that if the grants were of themselves the only rule between the contending plantations, there never would be an end to the dispute, without unsettling large tracts of land where the inhabitants have no better title to reduce the need to possession or posterior grants, which in point of law would be suspended by prior charters. Hence I conceive that many other circumstances must be taken into consideration besides the parchment boundary, for that may at this day be extended or narrowed by possession, acquiescence, or agreement, by the situation and condition of the territory at the time of the grant, as well as by various other matters with respect to the present dispute. The western boundary of Connecticut was barred at the time of the original grant, by the Dutch settlements, and the Crown was deceived when they were prevailed upon to convey a territory which belonged to another state then in Amity with the Crown of England. Besides this objection, the settlement of the new boundary under the Kings commission in 1664, and what is still stronger, the new line
marked out by agreement between this province and New York, has not conclusively precluded Connecticut from advancing one foot beyond those limits. It was absolutely necessary for the Crown, after session of new Netherlands, to decide the clashing rights of the Duke of York and the adjoining colony; and therefore all that was done by virtue of the commission was awarded by that purpose must at this day be decreed valid, as the nations have ever since that time submitted to those determinations, and the colonies of New York and New Jersey subsisted only upon the authority of those asked. I am of opinion therefore that the colony of Connecticut has no right to resume its ancient boundary by over leaping the province of New York so as to encroach upon the Pennsylvania grant, which was not made until after the Connecticut boundary had been reduced by new confines, which restored the land beyond those settlements westward, to the Crown, and laid them open to a new grant. The state of the country in dispute is a material state reason why the Crown ought to interfere in the present case, and put a stop to this growing mischief. But I doubt this business cannot be adjusted very soon, because Mr. Penn must apply to the Crown for relief, which method of proceeding will necessarily take up time, as the province of Connecticut must have notice, and be heard."
This seems justly to have been regarded as the most impregnable fortress to the Pennsylvania claim. But the Attorney General admits, that the Connecticut Charter did originally cover the lands west of the Delaware; for he says, "I am of opinion that the colony of Connecticut has no right to resume its ancient boundary, by over leaping the province of New York;" thus distinctly recognizing the fact that the "ancient boundary" did overleap New York.
The reader, we are sure, will be anxious to see the authorities on the other side, and weigh the objections which truth or ingenuity may have marshaled in opposition to this formidable, if not conclusive array of fact, and opinion.
Questions in respect to the contested lands having been made before the king in council, the Susquehanna Company dispatched Col. Eliphalet Dyer, as their agent, to England. This gentleman, a native of Wyndham, was one of the most eminent lawyers of Connecticut: his name will frequently occur in the subsequent pages of this work, accompanied with some amusing anecdotes. of good form, of pleasing address, an ardent advocate of the Connecticut claimed; a more suitable selection could not have been made. A countryman hearing him plead before the court, went away and set-"no man need ever speak again"-meaning he could not be surpassed.-on occasion when in the Connecticut assembly, he was endeavoring to awaken the house to strenuous efforts in behalf of their Wyoming settlement, a wit penned this impromptu:
"Canaan of old, as we are told,
where it did rain down manna;
wa’nt half so good, for heavenly food,
as Dyer makes Susquehanna."
His voice was a fine tenor, which he modulated with art, and he was an agreeable and effective debater. But this is a digression.
Mr. Pratt having given his opinion in favor of Mr. Penn, the Connecticut agent propounded the following questions to the gentleman whose names are subscribed to the answer.
"Have not the said Governor and Company of the colony of Connecticut, the right of preemption, and the title under the Crown to the lands aforesaid, within the limits and bounds of their patent aforesaid, lying westward of the province of New York, and not included in the patent of King Charles the second to the Duke of York, notwithstanding the several settlements of boundaries, between the colony on the east and the province on the west made as well by agreement between the parties, as under the Royal authority, and notwithstanding the subsequent Charter to Sir William Penn?
To which they unanimously answered. "The agreement between the colony of Connecticut and the province of New York, can extend no farther than to settle the boundaries between the respective parties, and has no effect upon other claims that either of them had in other parts; and as the Charter to Connecticut was granted but 18 years before that to Sir William Penn, there is no good ground to contend, that the Crown could, at that period, make an effectual grant to him of that country, which had been so recently granted to others. But if the country had been actually settled under the latter grant, it would now be a matter of considerable doubt, whether the right of the occupiers, or the title under which they hold, could be impeached by a prior grant without actual settlement.
(Signed) E. Thurlow, M. Wedderburne, Rd. Jackson, Jn. Dunning"
With regard to this circumstance mentioned in the latter clause of their answer, the reader will please to recollect, that the lands now in dispute, was first actually settled under the former grant, and not the latter.
Here then we have weighty opinions, against opinions of equal weight. Legal gentleman who may honor these pages with a perusal, will probably agree with me in sentiment, that the learned counsel in each case, gave the opinions agreeable to the wishes of their respective employers; and if they had happened to be retained on directly opposite sides, their opinions would have been exactly reversed.
It will be then but fitting and fair, that we examine the question, and decide impartially for ourselves. Such examination is deemed more important, because I regard the whole matter mainly to rest on the point of Charter right; for surely, if the Connecticut Charter did not embrace the territory, it would be little short of absurdity to maintain that the people of that colony had any right to come within Mr. Penn's Charter to buy lands of the Indians. Charter rights, in my opinion, gave, as matter of course, the preemption or right of Indian purchase.
The pride of authorship will naturally lead me, after thoroughly comprehending the reason of different writers, to remould them in my own language, adding whatever might appear pertinent or illustrative. But an argument lies before me so neat, perspicuous, and effective, that it would be inexcusable to change a word or syllable, as for a common mason to alter a finished piece of Grecian sculpture. It would be deemed, perhaps, too much to adver, that there is but one man now living who could improve the piece. A strong motive for presenting a entire, rises from the wish to exhibit to the reader and evidence that if the talents of chancellors and attorneys general in England were engaged on the question, abilities if less distinguished, certainly not less powerful, discuss the point on this side of the Atlantic. We have been assured that the able penman was endowed with powers of elocution fitted to give persuasive utterance to the conceptions of his strong understanding and well disciplined mind. In the brightness of midday usefulness and fame, a cloud gathered around his brow. A whirlwind swept him from the scenes of his early triumphs, and his rising glory-scattering his fortune, his honors and his hopes to the scorn of an unfeeling world; the malignant triumphs of envious foes, and the deeper wounding pity of a 1000 friends. A false and fatal step, involving a question of integrity, sent him to die an exile in a foreign land.
"No further seek his merits to disclose,
or draw his frailties from their dread abode;
there they alike and trembling hope repose,
the bosom of his father and his God."
But to the argument.
"The reader being presented with a particular statement of all the requisite facts and documents, is now prepared to judge whether anything in this whole transaction cannot, can operate as a bar of the Connecticut claims to the Susquehanna lands. What conclusion does the mind naturally draw from all these premises? Is it not this, that the settlement in 1650, by the arbitration of the Commissioners of the United Colonies; that in 1664, through the intervention of the Royal commissioners; that in 1683, and all the succeeding settlements, were only different adjustments of the same dispute, and respected nearly the divisionary line between New Netherlands, and afterwards New York, and Connecticut, with a remotest relation to the question whether the Charter gave Connecticut any lands west of the Delaware? If the determination of 1664 bars the right of Connecticut to the western lands, it's validity must be founded either upon the authority of the Commissioners, derived from the Crown, or upon the consent of Connecticut, expressed by her agents. Let us examine the amount of each. The Commissioners had no authority to reduce the limits of the Charter. 1st. The King could give them no such power; for he had none himself, especially after having solemnly stipulated in this Charter, that it should be good and effectual in law, to all intents and purposes what ever, and receive such construction, and should be most favorable to the grantees. A Charter is sacred and inviolable in its nature. It is not an act which may be reversed at pleasure; but a solemn compact, to which there are two parties, whose joint consent is necessary to the revocation or alteration of it. The Royal, or rather ministerial attempts to alter an abridged the colonial charters were considered illegal and unconstitutional stretches of prerogative. The American Revolution occasioned by them, is a standing memorial of the light in which they ought to be viewed. 2nd. The commission to Nichols and others, imports no such authority. The objects of the commission are expressed in the preamble. So far as relates to this point, there appear to be certain complaints that there were differences about interfering claims of limits, by reason whereof all the colonies did not enjoy the liberties and privileges granted to them by their several charters, "upon confidence and assurance of which, they transported themselves and their estates, into these parts." Here it is plain, that the intent of this commission was not to give or take away, not to enlarge or curtail, any charter rights; but only to adjust the existing disputes about such rights, and to see that everyone enjoyed his own peaceably and fully. 3rd. This is made, if possible, still more evident, by the letter which the Commissioners brought over from the King, to the colony of Connecticut, in which his Majesty says, "your liberties and privileges we will not suffer to be violated in the least degrees; and that they may not be, is the principal business of our said Commissioners, as likewise to take care that the bounds and jurisdictions of our several colonies there, may be more clearly agreed upon; that everyone may enjoyed what of right belongeth unto them, without strife or contention." Their authority, we see, extended only to the protection of charter rights, and the adjustment of disputes respecting such rights. Now there were in fact, no opposite or adversary claims, as to the western lands, covered by the Connecticut Charter. No foreign nation had any pretensions to it. The Duke did not and could not claim it, the Delaware being expressly made his western limit. The King advanced no claim to it, and gave no intimidation that he was dissatisfied with his own grant of it to Connecticut. In short, there was no manner of dispute or contention about it. The Commissioners therefore, according to the tenor of their commission, had nothing in the world to do or determine respecting it. If they did undertake to decide with regard to it, and to reduce the Connecticut grant, they exceeded their jurisdictions; and their act so far forth, were consequently void, unless sanctioned by the consent of Connecticut. Let us then see how far the colony consented. The Hartford or Connecticut Plantation, which then acted by itself, expressed their assent by their agents, which could bind the colony no farther than these agents were authorized. The stream cannot rise higher than its fountain. The action of agents must be so construed, as to be consistent with their commission; for beyond that they are of no force. Now the whole amount of power delegated in this case, was merely "to issue the bounds between the Duke's patent, and that of the colony." Is to the question, whether the Charter did or did not, give a title to the land west of the Duke's patent, that is, west of the Delaware River, the agents had not the smallest particle of the authority to agree or to treat. The assent of the colony therefore, is confined solely to issuing the bounds between New York and Connecticut, that is, to settling the partitionary line. The same limitation qualified the assent of the New Haven jurisdiction, when they acceded to the united government, and to this settlement. They say, "having seen a copy of his Majesty's Commissioner’s determination, (deciding the bounds betwixt his Highness, the Duke of New York, and Connecticut Charter) we do declare submission thereunto."
"Now can it be pretended with any color of reason, that this amounts to either a surrender of the land west of the Delaware to the Crown, or a transfer of it to the Duke, or an authoritative determination, that no such land was included within the Charter of 1662? Had these documents been well attended to, I am persuaded no man in his senses, would ever have contended for such a wild and monstrous conclusion.
"The determination itself, taken altogether, neither expresses nor implies any such thing. In the first place, nothing is expressed with regard to the western land. It is not so much as mentioned. And surely a positive grant, which was to be reputed and construed in the most favorable sense for the grantees, was not to be taken away by doubtful construction and implication. 2nd. The subject matter, which is easily learned from the circumstances of the times, is also stated and the preamble, or recital of the instrument of determination, and which the Commissioners say, "we have heard the differences about the bounds of the patents granted to his Royal Highness, the Duke of York, and his Majesty's colony of Connecticut, etc. What they heard, and undertook to determine, was evidently nothing more or less than disputes existing between the Duke (who had now succeeded to the Dutch claims and pretensions) and Connecticut, respecting the bounds of their patents. These disputes, which appear to be all that was submitted to them, had no reference to any land, to which the Duke made no claim. The only interfering claims respected the land which was included in the Duke's patent, as well as that of Connecticut. Unless determination therefore, is to operate upon a subject not submitted or heard, it can have no effect, but upon Long Island, and the land between Hudson and Connecticut rivers.
"If this settlement is to be viewed in the light of a judicial adjudication, or award of arbitrators, it was only of a controversy, or controversies, subsisting between the Duke and the colony. They were the only parties, and were present by their respective representatives. If we consider it rather as an agreement, it was still between the same, and no other parties. And can a judgment, or an agreement between any two parties, respecting their mutual demands, be conclusive, as to the claims or disputes, which may then exist, or afterwards arise, between either of them and another party? Common sense and common-law answer in the negative.
"Though the terms western bounds of the colony of Connecticut, are used in the report, they are certainly to be understood with reference to the subject matter, about which they are so used, and in connection with the whole instrument.-they are explained and limited by the words which immediately follow-"and the plantations lying westward of that Creek and line, so drawn, to be under his Royal Highness’s government, and all plantations lying eastward of that Creek and line, to be under the government of Connecticut." How far eastward is the country here adjudged to Connecticut? The expression is not limited, unless it be by the limits of the Commissioners authority, or the subject of this their determination. Could Connecticut, by virtue of it, claim Rhode Island, for example, because it lies the eastward of that Creek and line, though it was not within the submission? Or, to take an instance exactly in point, could this determination be pleaded in bar against the claim of the Duke to the track of country at St. Croix, or Nantucket, or Martha's Vineyard, which is granted to him, by his Charter, because that track is situated eastward of the line here specified? If not, then neither can the expression "western bounds of the colony of Connecticut," be a bar to the claim of Connecticut, to land lying west of the Duke's patent, and covered by their Charter. This conclusion appears, to my mind, to be irresistible. The whole determination must be interpreted in the same limited or unlimited sense.
"But the only true, natural, and legal construction of this settlement, is, that it was, and was understood and intended to become co-extensive with the disputes submitted, which was relative merely to Long Island, and the track of country east of Hudson's River, and west of Connecticut River; or, if you in the utmost extent, east of Delaware and west of Narragansett, beyond which the claims of the two parties did not, and could not interfere. Mamaroneck Creek, and a north northwest line drawn from thence to Massachusetts, was determined and consisted to be the line of division, that is, the eastern bounds of New York, and the western bounds of Connecticut; as to the controversial territory, so much of which as lay east of that line, was to be considered as belonging to that colony, and so much of it as lay west, to the Duke’s, and that according to the true intent of the two Charters taken together. As to Nantucket, Martha's Vineyard, St. Croix, or any plantation or place, which lay east of the claim of Connecticut, this determination has no operation, notwithstanding the generality of the phrase, that, "all plantations eastward of that line were to be under Connecticut." With regard to those plantations, the Duke's claim was left, to be afterwards controverted and decided on its original merits. So, likewise, notwithstanding the generality of the phrase, "the western bounds of the colony of Connecticut," any lands west of the Duke's claim and within the limits of the Connecticut Charter, were entirely out of this determination, and the title to them consequently was left to be disputed and determined upon its own original merits.
"This is the sense in which a judge or a juror, a lawyer or a man unacquainted with law, would understand it.-For the truth of the remark, I appeal to the candid readers; and would confidently risk the whole controversy upon the appeal."
The most conspicuous and able writers on behalf of the Pennsylvania claim, were the Rev. Dr. Smith, and Tench Cox, Esq. The former, distinguished for learning, eloquence and eccentricity, lent his pen to the subject before the Revolution; the latter, highly intelligent, and indefatigable in whatever cause he engaged, entered into the controversy with the zeal that left no source of information unexplored, and with an ability that gave to his facts the most powerful impression. All the proceedings of the government of Connecticut were very fairly scrutinized for matter to show a waver on the part of that colony, of any right west of New York. Two points made by those gentlemen, and regarded as important, especially demand attention.
First,-that in reply to a message sent by Mr. John Armstrong, by Gov. Hamilton of Pennsylvania, Gov. Wolcott of Connecticut, and a letter dated Windsor, March 13, 1754, wrote thus: "some of our inhabitants hearing of this land at Susquehanna, and that it was north of the grant made to Mr. Penn, and that to Virginia, are upon a design of making a purchase of the Indians, and hope to obtain a grant of it from the crown. This appearing a design to promote his Majesty's interest and render the country more defensible we were always wishers to it. But Mr. Armstrong informs me that this is certainly within Mr. Penn's grant. If so, I don't suppose our people had any purpose to quarrel with Pennsylvanians."
Second,-that in 1761, in reply to certain inquiries sent out from the king to the governors of the several colonies, one of which was to ascertain the extent of their respective boundaries, Gov. Fitch of Connecticut answered-"that the colony was bounded west by New York!"-it was therefore assumed, and powerfully urged, that this was either an acknowledgment that the Charter limits never extended beyond the Delaware; or was to be regarded as a solemn relinquishment of such claims.
Mr. Avery, who treats this point more fully than any other writer, on behalf of Connecticut, sets forth,-
"That the committee of assembly drew the reply stating, as was the usual answer, that the colony was bounded by their Charter, to which they referred:-that so worded, the report was adopted. That the subject was then handed over to the executive, to receive proper form, and be forwarded in reply. That Gov. Fitch, without authority, of his own mere motion, so changed the matter as to declare, "that the colony was bounded on the west by New York." That when discovered, a universal burst of censure pervaded the colony. Gov. Fitch was left out at the next election, Mr. Pitkin being chosen in his place; and that from this fall he never recovered." Mr. Avery adds, but gives no authority for the opinion, that Gov. Fitch was supposed to have received a bribe of $1200 for his abjuration of claim west of New York. In the absence of any proof, this imputation we should deem unfounded. Who would have given a sum so considerable for an opinion, which could weigh so little in a solemn adjudication of the question? It seems much more probable that Gov. Fitch supposed the inquiries related to the settled parts of the colony; as a man, when asked the size of his plantation, answers 200 acres, not thinking it pertinent to the inquiry to speak of unimproved out lots of 1000 acres, which he may possess.
Justice demands of us to record some further objections, made by Dr. Smith and Mr. Coxe, to which the reply as of adverse writers furnish so little of interest to detain the reader, that a brief remark will be sufficient to dispose of each.
Opinion first. That the Susquehanna Company never had a formal grant from the colony of Connecticut.
Second. That the colony of Connecticut received nothing from the Company as the consideration of those lands.
Third. That the Company made their purchase of the Indians, contrary to the laws of Connecticut.
Fourth. That the king, in 1763, forbid the settling this territory.
In reply to the first three of objections, it may be said to be matter exclusively between the Susquehanna Company and the colony, or state. The whole proceedings of the company having, again and again, received the most full and explicit recognition and confirmation from the Connecticut government.
In reply to the fourth, it may be asked, after the king had granted the lands by Charter, what authority had he reserved to forbid the settlement?
In conclusion. The Connecticut Charter was granted in 1662. That to William Penn, in 1681-19 years afterwards.