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CHAPTER XXVI.

ENGAGEMENT OF CONGRESS TO HEAR AND Decide the
CONTROVERSY.

1779-1780

Efforts of the New York Assembly to obtain the interposition of Congress against Vermont-Resolves of Congress engaging to hear and decide the controversy and enforce their decision Measures of the Vermont government in vindication of the right of the state to independence Agents of the state appear in Philadelphia and protest against the jurisdiction of Congress — The hearing of the controversy postponed.

ON

N the 8th of September, 1779, the delegates from New York laid before congress certain instructions of their legislature, of the 27th of the preceding month, directing them to make use of all possible exertions to obtain the speedy and effectual interposition of congress in behalf of the state against the Vermonters as the only means of preventing a resort to military force. The instructions stated that the principal business of the meeting of the legislature at that time was "to deliberate upon that momentous subject; " that the legislature would continue in session, without adopting any coercive measures, "until they were favored with the sentiments of congress," and "in case congress should decline to interpose by an express recommendation in favor of the state," Mr. Jay, who had the business in special charge, was directed" immediately to withdraw" from congress and report to the legislature. These instructions were accompanied by a memorial from the New York committee of Cumberland county, which also asked for the interposition of congress against the measures of Vermont. Circumstances favored the efforts of New York. New Hampshire, which had formerly been friendly to Vermont, had become hostile. In order to secure the quiet submission to her authority of her uneasy inhabitants on her western border, who were ambitious for a new state with its capital on Connecticut river, and with some hope of extending her territory to the westward of that river, by the action of congress, she had laid before that body a claim to the whole of Vermont. And now that the subject was brought before that tribunal the delegates from Massachusetts deemed it advisable to put in the ancient claim of that commonwealth to the southern part of the new state. Thus Vermont was deprived of the sympathy of

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a large portion of the members from New England, on which she had heretofore relied. Her treatment of the disaffected in her midst was loudly complained of, and some laws which had been enacted by Vermont, probably for the mere purpose of inspiring terror, for no attempt was ever made to execute them, subjecting those who opposed her authority to severe and degrading corporal punishment, were used to produce an unfriendly feeling against the managers of the new state government. They doubtless had such an effect, for though corporal punishment for acknowledged crime was then in common use in all the states, its threatened application to persons of respectable standing in society, for a political offence which many would justify, was very generally disapproved. Many months had been spent by Mr. Jay and his associate delegates, in preparing the minds of the members for active measures; and now that there was little or no hope left that a reconciliation of the several parties to the controversy could be effected, and an armed collision being apparently imminent, it was difficult to resist the appeal to congress to undertake its adjudication. The papers presented from New York were referred to a committee of five members, who on the 17th made their report, which was taken into consideration by congress, and on the 24th a series of resolutions on the subject was adopted.

The resolutions were preceded by a preamble, in which it was recited that applications had been made to congress, by the states of New York and New Hampshire, "relative to disturbances and animosities among the inhabitants of a certain district known by the name of the New Hampshire Grants;" and that a majority of the committee which had been appointed by resolution of the first of June last to visit the district, had not been able to meet; that such animosities were likely to disturb the peace of the United States, which rendered it "necessary for congress to interpose for the restoration of quiet and good order;" that the states of New Hampshire, Massachusetts and New York, claimed the said district, either wholly or in part, against each other, and against the people inhabiting it, and that the said people denied the jurisdiction of either of said states. For these alleged reasons, congress resolved as follows:

"Resolved unanimously, That it be, and hereby is most earnestly recommended to the states of New Hampshire, Massachusetts Bay and New York, forthwith to pass laws expressly authorizing congress to hear and determine all differences between them relative to their respective boundaries, in the mode prescribed by the articles of

confederation, so that congress may proceed thereon by the first day of February next at the farthest; and further that the said states of New Hampshire, Massachusetts Bay and New York, do, by express laws for the purpose, refer to the decision of congress all differences or disputes relative to jurisdiction, which they may respectively have with the people of the district aforesaid, that congress may proceed thereon on the first day of February next; [and also to authorize congress to proceed to hear and determine all disputes subsisting between the grantees of the several states aforesaid, with one another, or with either of the said states, respecting title to lands lying in the said district, to be heard and determined by commissioners or judges to be appointed in the mode prescribed by the 9th article of the confederation aforesaid : 1] and further to provide that no advantage be taken of the nonperformance of the conditions of of the grants of the said lands, but that further reasonable time be allowed for fulfilling such conditions.

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"Resolved unanimously, That congress will and hereby do pledge their faith to carry into execution and support their decisions and determinations in the premises, in favor of whichsoever of the parties the same may be, to the end that permanent concord and harmony may be established between them, and all cause of uneasiness removed.

“Resolved unanimously, That congress will, on the said first day of February next, proceed, without delay, to hear and examine into the disputes and differences relative to jurisdiction aforesaid, between the said three states respectively, or such of them as shall pass the laws before mentioned on the one part, and the people of the district aforesaid who claim to be a separate jurisdiction on the other; and after a full and fair hearing will decide and determine the same according to equity; and that neither of the said states shall vote on any question relative to the decision thereof. And congress do hereby pledge their faith to execute and support their decisions and determinations in the premises.

"Resolved unanimously, That it is the duty of the people of the district aforesaid, who deny the jurisdiction of all the aforenamed states, to abstain in the meantime from exercising any power over any of the inhabitants of the said district, who profess themselves to be citizens of, or to owe allegiance to any or either of said states; but that none of the towns, either on the east or west side of the

1 This clause included in brackets was substituted by resolution of congress of October 2, for one repealed, which repealed clause is here omitted.

Connecticut river, be considered as included within the said district, but such as have heretofore actually joined in denying the jurisdiction of either of said states, and have assumed a separate jurisdiction which they call the state of Vermont. And further, that in the opinion of congress, the said three states aforenamed, ought, in the meantime, to suspend executing their laws over any of the inhabitants of said districts, except such of them as shall profess allegiance to, and confess the jurisdiction of the same respectively. And further, that congress will consider any violences committed against the tenor, true intent and meaning of this resolution as a breach of the peace of the confederacy, which they are determined to keep and maintain. And to the end, that all such violences and breaches of the public peace may be better avoided in the said district, it is hereby recommended to all the inhabitants thereof, to cultivate harmony and concord among themselves, to forbear vexing each other at law or otherwise, and to give as little occasion as possible to the interposition of magistrates.

"Resolved unanimously, That in the opinion of congress, no unappropriated lands or estates which are or may be adjudged forfeited or confiscated, lying in the said district, ought, until the final decision of congress in the premises, to be granted or sold.

"Ordered, That copies of the foregoing resolutions be sent by express to the states of New York, New Hampshire and Massachusetts, and to the people of the district aforesaid, and that they be respectively desired to lose no time in appointing their agent or agents, and otherwise preparing for the hearings aforesaid."

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These resolutions were considered by the New York delegates as a virtual engagement of congress to decide the controversy in her favor, and if necessary, to carry its decision into effect by force of The claims of both Massachusetts and New Hampshire were regarded by them as clearly unfounded, and, as it would seem, not without reason. That of Massachusetts had been decided against her in 1739 by the crown, the then acknowledged umpire, and that of New Hampshire in favor of New York by the same authority in 1764; and both decisions had been ever afterwards acquiesced in by the colonies against which they were made. Vermont was viewed as a mere nominal party. The states named in the resolutions were first to give their assent to a hearing of the controversy by congress, but the consent of Vermont was not asked. Her jurisdiction was denied in advance by requiring her to forbear granting unappropriated lands, and confiscating the lands of tories; and to abstain from the exercise of authority over a portion of the inhabitants within her

limits, and to permit the exercise of the authority of either of the contesting states over any of the inhabitants who should choose their jurisdiction. She was indeed to be allowed to attend at the trial, but only, according to Mr. Jay, to prevent clamor, and to give the decision which was to be made against her the greater weight. In his report to Gov. Clinton, in explanation of the resolutions, dated the day after their passage, his language on this point was as follows; "You may ask why Vermont is made a party? the reason is this, that by being allowed a hearing, the candor and moderation of congress may be rescued from aspersions, and that the people, after having been fully heard, may have nothing to say or complain of, in case the decision of congress be against them, of which I have no doubt.”1

These resolutions were viewed in a similar light by the men administering the government of Vermont. They had been passed without their knowledge, and were believed by them to be the result of an understanding between the delegates of New Hampshire and New York for a division of the territory, in which understanding it was feared the delegates from Massachusetts had also participated.

Neither of these New England states, it was thought, could, upon any legal or equitable principles, make even a plausible case before congress, but their aid would be most essential to the success of New York, and when that was obtained a distribution of the spoils could be made. That there was some ground for this belief, at least so far as New Hampshire was concerned, will be seen hereafter.

"It was impossible," says Dr. Williams in his history, "that Vermont should comply with the resolves of congress. To have four separate jurisdictions existing at the same time, in the same territory, as the resolutions recommended, would at any time have been absurd and impossible; least of all was it to be admitted or attempted after the people had declared themselves to be a free and independent state, assumed the powers of government, and exercised them in all cases, and in every part of the state. They had already formed their constitution, enacted a code of laws, erected courts of justice, and fully exercised all the powers of government. The plan of four separate jurisdictions, which congress proposed, was incompatible with any state of society, and the more dangerous as New York was constantly aiming to break up the government of Vermont, by granting commissions to her adherents, encouraging informers and promoting disaffected persons in every part of the territory."

1 Doc. Hist. N. Y., p. 981, 987. Jour. Cong., vol. 3, p. 350, 365, 366, 371. Jay to Clinton, September 25, 1779. Life of Jay, p. 88 to 95.

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