« ΠροηγούμενηΣυνέχεια »
king advanced no claim to it, and gave no intimation 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 jurisdiction ; and their acts 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. A stream cannot rise higher than its fountain. The acts 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." As 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 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 commissioners' determination, (deciding the bounds betwixt his Highness, the Duke of 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. 2d. The subject matter, which is easily learned from the circumstances of the times, is also
stated in the preamble, or recital of the instrument of determination, in 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 the 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 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 tract of country at St. Croix, or Nantucket, or Martha's
Vineyard, which was granted to him, by his charter, because that tract 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 the settlement, is, that it was, and was understood and intended to be, co-extensive with the dispute submitted, which was relative merely to Long Island, and the tract of country east of Hudson's river, and west of Connecticut river; or, if viewed 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 north-west line drawn from thence to Massachusetts, was determined and consented to be the line of division, that is, the eastern bounds of New York, and the western bounds of Connecticut; as to the controverted 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, 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 asterwards 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 reader; 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 Coxe, Esq. The former, distinguished for learning, eloquence and eccentricity, lent his pen to the subject before the Revolution; the latter, highly intelligent, indefatigable in whatever cause he engaged, entered into
the controversy with a 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, in 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 interests and render the country more defensible we were all wishers to it. But Mr. Armstrong informs me that this is certainly within Mr. Penn's grant. If so, I dont suppose our people had any purpose to quarrel with Pennsylvanians.”
A tart sarcasm on the supposed folly of this epistle, is all we find in the ardent pages of the advocate for the Connecticut claim. May it not be regarded a stroke of policy, to lull the jealousy of Mr. Penn's government? There is nothing so very explicit in its wording as to be taken as a formal abjuration of claim.—“I dont 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 pro
* The name of John Armstrong will appear frequently in these pages, and his character more fully developed hereafter.
per form, and be forwarded in reply. That Governor 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. F. was supposed to have received a bribe of twelve hundred dollars for this 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 two hundred acres, not thinking it pertinent to the inquiry to speak of unimproved out lots of one thousand acres, which he may possess.
Justice demands of us to record some further objections, made by Dr. Smith and Mr. Coxe, to which the replies of adverse writers furnish so little of interest to detain the reader, that a brief remark will be sufficient to dispose of each.
Objection 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 a consideration for 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 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-nineteen years afterwards.