A more detailed view of the controversy - Objections to the Connecticut Claim by Charter - Intervening settlements of the Dutch - Dividing line between New York and Connecticut - Letter of King Charles - Final adjustment of that line, and plausible inference - Gov. Penn - Pratt (British Attorney General’s) opinion - Col. Dyer sent to England - Counter opinions of Wedderburne, Thurlow, Jackson and Dunning - Powerful argument of a known, but nameless American - Rev. Dr. Smith - Tench Coxe Esq.

            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 as almost every interesting event in the history of Wyoming, had its origin in these conflicting claims, it seems fitting that a more detailed statement should be made of them, than 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 counsel 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 protest, elaborate essays, and numerous pamphlets now before me, 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 enlivening incident, more from studied brevity, and most from the assurance that this and the succeeding letter, and indispensable to a just comprehension of the subject.

            Shaking then from these multitudinous papers, the venerable dust with which antiquity had shrouded them, we proceed with cheerful alacrity to our task.

            It was objected: 1^st.  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, for 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 Mssrs. Penn, Peters, Norris and Franklin, to the Government in Philadelphia, and entered on the records.

            It was objected - 2^nd.  That in establishing the county of Litchfield, the act declares it located in the north-west corner of the colony; acknowledging, therefore, that the charter extended no further west; or that, if before the charter had greater limits, this was a waver 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

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plantation half a mile wide, east and west, and two miles long, north and south - 100 acres on one end in cultivated fields - the rest a wilderness - were he, in a lease, to speak of the most distant cleared field adjoining the forest, as the outer limits of his farm, no one would assume it as an abandonment of what lay beyond, being four-fifths 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.

            3^rd.  A far more grave and weighty objection next presents itself for consideration; which was carried up before the king in 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 this 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 boundary; but east and north, their limits were extremely indefinite.  Hence the most spirited contests arose between them and the adjoining colony of Connecticut, in respect to the division line between the two Provinces.  [Washington] Irving, in the delightful pages of his Knickerbocker [History of New York, 1809], has found in that dispute materials for more than one of his pleasing chapters [notably Chapter 7 in Book IV, which deals with the border wars].  For a time civil war raged, the Dutch pressing eastern boundary towards Connecticut River, to which they claimed; the people of that colony, with a zeal and pertinacity in no way inferior, urging their limits west towards 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 the New Netherlands:”  We quote so much as is germain [sic] 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 followed: -

            “the bounds upon the main to begin from the west side of Greenwich Bay, being about four miles from Stamford, and so to run a northerly line, twenty miles up into the country; and after as it shall be agreed by the two governments, of the Dutch and New Haven, provided that said line not come within ten miles of Hudson’s river.  And it 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 printer nearly fifty 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 until 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 York [son of Charles I “The

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Martyr,” of England, and Henrietta Marie, of France; he later became James II of England] by a royal patent or charter, dated March 12^th, 1664.  On the 26^th day of April, a commission had been given to Col. Richard Nichols, to dispossess 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 the land between Connecticut River and the Delaware, yet 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 be, was still and unsettled question, the former settlement not being satisfactory or conclusive.  Here was a direct interference between the Dutch claim, to which the Duke had now succeeded, and that of the colony.  Each party insisted on Long Island, and the tract 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 a 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 that he should hold it in peace, and especially that all contests 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 too long, we will give the entire letter: -

“Charles R.

            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 sent these persons of known abilities and affections to us, that is to say, Col. Richard Nichols, &c., our commissioners, to visit these or several colonies and plantations in New England, to the end 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, whether 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 said commissioners, as likewise to take care that the bounds and jurisdiction of our several colonies there, may be clearly agreed upon;  that every one may enjoy of right belonged unto them, without strife or contention; 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 manners;

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so - not doubting of your full compliance and submission to our desire, we bid you farewell.  Given at our court, at Whitehall, the 23^rd day of April, 1664, in the 16^th year of our reign.  By his Majesty’s command.

                                                                                                             Henry Bennet.”

            The colony of Connecticut, more than ever desirous to have the disputed line finally settled, immediately, that is, Oct. 13, 1664, appointing 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 were expressly authorized, if possible, to issue the bounds between the Duke’s patent and ours.”

            A second adjustment of boundary grew out of this mission.  Long Island was adjudged to New York, and the contested line was established thus.

“Determination of hid Majesty’s commissioners, respecting the boundaries of His Royal Highness the Duke of 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 13^th day of October, 1664, to accompany John Winthrop, Esq., Governor of his Majesty’s colony of Connecticut, to New York, and by Mr. Howell 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; as 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, named Mamaroneck, which is reputed to be about twelve miles to the east of West Chester, and a line drawn from the east point, or side, where the fresh water falls into the salt, at 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 that creek and line, to be under the government of Connecticut.

            Given under our hands at Fort James, in New York, on Manhattan’s Island, this 30^th day of November, 1664.

                                                                                                          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

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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 that 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 5^th of January, 1665, communicated their final acquiescence, in a letter, in which (among other things not pertinent to this point,) they say, “We now signify, that having seen the 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.”

            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 on 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 the 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 whatever rights Connecticut might have previously had to the Susquehanna lands, that declaration was a waver, or relinquishment of them, for ever.

            Governor 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 jurisdictions; 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 to, ratified and confirmed, by

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the Governor and Commissioners of the colony.”

            Still more full, authoritative and emphatic, 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 have any colour or pretence under their charter to set up this tract of land westward of New Jersey through Pennsylvania, as far as the south sea; and what is most advisable for the proprietaries to do in case the Government of Connecticut persist in their claim?

            “If all the colonies in North America,” says Mr. Pratt “were to remain 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 neighbor, 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 by 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 the 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 lands 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 assume its ancient boundary, by overleaping the

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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 the 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.*

            * 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.”

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,

                                                Where it did rain down Manna;

                                                Wasn’t 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 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  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

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could, at that period, make an effectual grant of him to that country, which had been so recently granted to others.  But if the country had 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 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 happened to be retained on directly opposite sides, their opinions would have been exactly reversed.

            It will then be 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 part of charter right; for surely, if the Connecticut charter did not embrace the territory, it would be a 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, five, 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 piece of Grecian sculpture.  It would be deemed, perhaps, to much to aver, that there is but one man living now who could improve the piece.  A strong motive for presenting it entire, arises from the wish to exhibit to the reader and evidence that id 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 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 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 in exile in a foreign land.

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                                    “No further seek his merits to disclose.

                                                Or draw his frailties from their dread abode;

                                                There they alike in 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, 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.  1^st. 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 to the light in which they ought to be viewed.   2^nd.  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.  3^rd.  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 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 to them, without strife or contention.”  Their authority, we see, extended only to the protection of charter rights, and the adjustment of

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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 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 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 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 [sic] 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 it can 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 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.  2^nd. The subject matter, which is easily learned from the circumstances of the times, is also stated in the preamble, or recital of determination, in which the commissioners say, “We have heard the differences about the bounds of 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 bound 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

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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 in the submission?  Or, to take an instance exactly in point, could this determination be pleaded in bar against the claim of the tract of country at St. Croix, or Nantucket, or Martha’s Vineyard, which was granted to him, by his charter, because the tract is situated eastward of the land 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 Narragansett, beyond which the claims of the claims of the two parties did not, and could not interfere.  Mamaroneck  creek, and a north north-west line drawn from 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 controverter territory, so much of which lay east of that line, which was considered as belonging to that 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 other 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 east eastward of that line were to be under Connecticut.”  With regard to those plantations, the Duke’s claim was left, to be afterwards controverter

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and decided on its original merits.  So, likewise, notwithstanding the generality of the phrase, “the western bounds of the colony of Connecticut,” and 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, 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 he engaged, entered into the controversy with a zeal that left no source of information unexplored, and with an ability that gave his facts the most powerful impression.  All the proceedings of the government of Connecticut were 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,*

            * The name of John Armstrong will appear frequently in these pages, and his         character more fully developed hereafter.

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, that it was north of a 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, O 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 colony was bounded west by New York!” - It was therefore assumed, and powerfully urged, that either this was an acknowledgement that the charter limits never extended beyond the Delaware; or was to 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 Governor Fitch, without authority, of his own mere motion, so changed the matter as to declare, “That the colony was bounded on

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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 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 a 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.