« ΠροηγούμενηΣυνέχεια »
usurped upon its neighbour, 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 produce than either 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 king's commission in 1664, and what is still stronger, the new line marked out by agreement between this Province and New York, has now conclusively precluded Connecticut from advancing one foot beyond those limits. It was absolutely necessary for the Crown, after the cession of the New Netherlands, to decide the clashing rights of the Duke of York and the adjoining colonies; and therefore all that was done by virtue of the commission then awarded for 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 subsist only upon the authority of those acts. I am of opinion therefore that the colony of Connecticut has no right to resume its ancient boundary by overleaping 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 a 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 overleaping 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 marshalled in opposition to this formidable, if not conclusive array of fact, and opinion.
Questions in respest to the contested lands having been made before the king in council, the Susquehanna company despatched 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 claim; a more suitable selection could not have been made. A countryman hearing him plead before the court, went away and said—“No man need ever speak again"-meaning he could not be surpassed.—On an 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,
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 favour of Mr. Penn, the Connecticut agent propounded the following questions to the gentlemen whose names are subscribed to the answer.
“ Have not the said Governor and company of the colony of Connecticut, the right of pre-emption, 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
* There are few New England people who have not read, and laughed at, the story of the Frogs in the Willimantic, connected with the name of “ Col. Dyer-Elderkin too."
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 eighteen 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,
JN. DUNNING." With regard to the circumstance mentioned in the latter clause of their answer, the reader will please to recollect, that the land 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 gentlemen who may honor these pages with a perusal, will probably agree with me in sentiment, that the learned council in each case, gave 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, give, as matter of course, the pre-emption or right of Indian purchase.
The pride of authorship would naturally lead me, after thoroughly comprehending the reasoning 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 aver, that there is but one man now living who could improve the piece. A strong motive for presenting it entire, arises from the wish to exhibit to the reader an 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, discussed the point on this side 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 mid-day usefulness and fame, a cloud gathered round 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 thousand 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,
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, can operate as a bar of the Connecticut claim 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 merely the divisionary line between New Netherlands, afterwards New York, and Connecticut, without the 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, its 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. Ist. 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 whatever, and receive such construction, as 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 and abridge 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. 2d. 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 every one enjoyed his own peaceably and fully. 3d. 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 degree; 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 every one may enjoy 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 land, 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