said lands included within the petitioner's grants, which being of infinite prejudice to them; they therefore most humbly pray (amongst other things) that their said several grants made by Gov. Wentworth may be ratified and confirmed under your majesty's royal order. The lords of the committee in obedience to your majesty's said order of reference, have taken the said petitions into their consideration, together with a report made by the lords commissioners for trade and plantations upon the former of the said petitions, and do thereupon agree humbly to report as their opinion to your majesty, that the most positive orders should be immediately sent to the governor of New York, to desist from making any grants whatsoever of any part of those lands, until your majesty's further pleasure shall be known." His majesty taking the said report into consideration, was pleased with the advice of his privy council to approve thereof, and doth hereby strictly charge, require and command that the governor, commander-in-chief of his majesty's province of New York for the time being, do not, (upon pain of his majesty's highest displeasure) presume to make any grant whatever of any part of the lands described in the said report, until his majesty's further pleasure shall be known concerning the same. W. SHARPE.1 APPENDIX NO. 6. [See page 118.] BILL OF EXCEPTIONS IN THE LEADING EJECTMENT TRIAL AT ALBANY. Peter Quiet, ex dem. John Small vs. Josiah Carpenter. Memorandum, that on the 28th day of June, A.D. 1770, before Robert R. Livingston, Esq., and George Duncan Ludlow, Esq., justices of our lord the king, for the trial of causes arising in the county of Albany, and brought to issue in the supreme court of judicature for the province of New York, the defendant in the above cause offered to give in evidence to the jury, sworn and empaneled in the above cause, an instrument under the great seal of the province of New Hampshire [the charter of the township of Shaftsbury], which they alleged to be a grant of the lands in question, which same instrument is dated the 20th day of August, A. D. 1761, and in the first year of the reign of King George the Third, with the several endorsements thereon, prout the said grant and endorsements, to which the plaintiff's counsel objected, for that no evidence had been given to the court and jury aforesaid, to prove that the said province of New Hampshire ever included the lands in question, or that any authority 1 Doc. Hist. N. Y., vol. 4, p. 609. had ever been vested in any governor of New Hampshire to grant the said lands or to exercise any powers whatsoever there, but that on the contrary, it appeared to the court that the lands in question were within the province of New York, and prayed that the instrument aforesaid might not be received in evidence. And thereupon the said justices did declare and give it as their opinion that the same was not legal evidence, and did preclude the said defendant from giving the said instrument and the endorsements thereon in evidence to the said jury. Whereupon the counsel for the defendant did request of the said justices, according to the form of the statute in such cases provided, the present bill, which the said justices, at the request of the said counsel for the defendant, signed at Albany, the day and year first above written, SILVESTER of counsel for the defendant, ROBERT R. LIVINGSTON, APPENDIX NO. 7. [See pages 150 and 151.] THE NEW YORK ARGUMENTS IN FAVOR OF THE CONNECTICUT RIVER BOUNDARY CONSIDERED. The claim of New York to extend eastward to the Connecticut river prior to and independent of the king's order of July, 1764, was elaborately advocated in a report made by a committee of the colonial assembly of the province on the 10th of March, 1773, which is found on the journal of that body of that date. It was published at the time with A Narrative of Proceedings and An Appendix, and was extensively circulated in vindication of the title of New York to the territory of the New Hampshire Grants, and as a defence of the New York government against the complaints of the settlers. As stated in the text it was prepared with great care by James Duane, a learned and skilful lawyer of New York city, who as a large land claimant, had a deep personal interest in the establishment of the New York title. It is entitled A state of the right of the colony of New York with respect to its eastern boundary on Connecticut river, so far as it concerns the late encroachments under the government of New Hampshire. This document embodies all the arguments that have at any time been adduced in favor of the New York title, and presents it in a very plausible and imposing light. It has been received by some historical writers, without inquiry into the truthfulness of its statements, as a full and complete 1 From papers of the old congress in the state department, Washington, No. 40, vol. 1. vindication of the early right of New York to the territory in question, and as a satisfactory defence of the conduct of the government of that province towards the settlers. In that light it appears to have been viewed by Benjamin H. Hall, author of the History of Eastern Vermont, who without any apparent suspicion that any thing could be wrong in this official manifesto, has rested the theory of his work, so far as it relates to the New York controversy, upon its supposed correctness, and has consequently treated the New Hampshire claimants as wholly in the wrong throughout his entire work, thereby making his book an apology for the unfeeling avarice and cupidity of their oppressors. If he had looked upon the matter of this paper as open to inquiry and criticism, and had applied to it the like thorough investigating talent which he has happily displayed upon other subjects, he would most certainly have discovered that instead of being a reliable historical document it was so largely tinctured with misrepresentation and falsehood as to be clearly unworthy his confidence. This paper of Mr. Duane is unreliable, not so much because the facts stated are absolute falsehoods, though some of them are unfounded, as that most of them are unimportant to a right understanding of the real question in controversy, the main facts upon which the proper solution of that question depends, being either carefully omitted or so distorted and discolored as to make them convey erroneous impressions. The subject of the ancient eastern boundary of New York has been very fully discussed in the preceding chapters, and it is not proposed to restate the facts and arguments therein adduced, but merely to notice some of the most important assumptions in this official manifesto, which seem to conflict with the view already taken of the New York claim. 1. The report commences with the statement of a variety of historical facts tending to show that the Dutch were the first to discover and occupy Connecticut river, and that New Netherland originally reached to that river, leaving it to be inferred that such was its boundary at the time of its conquest under the grant of King Charles to the Duke of York. Upon this supposed inference as a basis, the author builds an argument in favor of the extension of New York to that river, by virtue of its succeeding to the rights of New Netherland. It is undoubtedly true that the duke's charter was designed to embrace the Dutch territory of New Netherland, and the argument would be quite conclusive if it were only founded upon fact. But the whole of it is a bold attempt at deception, and could have been no otherwise understood by Mr. Duane, for he must have well known the fact that more than thirteen years prior to the charter to the duke and the surrender of New Netherland to the English, the eastern boundary of the Dutch colony had been solemnly agreed upon by treaty between Gov. Stuyvesant and the New England commissioners at Hartford to be a line drawn from the west side of Greenwich bay on Long Island Sound, northerly twenty miles up into the country and afterwards indefinitely so that it "come not within ten miles of Hudson's river." This treaty as we have already seen (chap. 2) had some years prior to the duke's charter been solemnly ratified by the States General of Holland, and was a line so well established and understood by the Dutch, that when they made a temporary reconquest of the country in 1673, the commission which was issued to their governor Colve described the colony as bounded easterly, not by Connecticut river, but by such treaty line. This attempt at deception by suppressing an important historical fact, which overthrows and annihilates the whole argument of the author, and turns it directly against himself, is calculated to cast a damaging suspicion upon the whole report, sufficient at least to justify and require a thorough examination of it before assenting to its correctness. The grossness of this attempt at deception is made most palpable by the fact that the author refers to and relies largely upon the letter of Gov. Stuyvestant to Col. Nicolls of September 2, 1664, in answer to his demand for the surrender of New Amsterdam, to prove the eastern extent of the province to Connecticut river. In that very letter, although the Dutch governor claims that New Netherland originally included that river, he yet mentions and recognizes the treaty of Hartford of 1650, by which that river boundary had been relinquished and the new one above mentioned established. For the letter at length see Smith's History of New York, vol. 1, p. 20–26. 2. In endeavoring to make the settlement of the eastern boundary of New York with the colony of Connecticut appear consistent with the claim of the province to reach Connecticut river to the north of that colony, the author not only ignores the fact of the existence of the Hartford treaty of 1650 with the New England commissioners, by which the Dutch abandoned all claim to extend eastward to that river, but also the fact that any commissioners of the king accompanied the expedition for the conquest of the New Netherlands, or made or attempted to make any adjustment of boundaries with Connecticut at the time of the conquest, slurring over all that matter with a general declaration that during the first year of the administration of the duke's governor Nicolls "a fruitless attempt was made for establishing a boundary between New York and Connecticut." Now this "fruitless attempt" of the author of this report was a solemn adjudication made by the king's commissioners, of whom the duke's governor Nicolls was one, assented to by commissioners from Connecticut (as has already been seen) and was well understood at the time and afterwards by the New York authorities, as fixing upon a twenty mile line from the Hudson as the boundary, though by a mistake in the written award the line was made to take such a direction that it would eventually cross the Hudson, instead of running parallel to its general course. The settlement of 1683, mentioned in the report as an original adjustment was but a confirmation of the spirit and intention of that of 1664, as may be seen by a report of the English board of trade on the subject in vol. 4 of the Colonial History of New York, p. 625. See also Smith's N. Y., vol. 1, p. 35-38, and also ante, chap. 3, where the matter is fully explained. 3. A large portion of this State of the Right is taken up with what purports to be an account of the transactions between the governments of New Hampshire and New York, in regard to the boundary, after the controversy arose, that can have little or no bearing upon the question of right which the document purports to discuss; and with a recital of the original charters of New Hampshire showing that by those charters the province extended inland from the Atlantic only sixty miles, not reaching by many miles to Connecticut river. This nobody ever disputed, and the only effect of introducing it would be to draw away the attention of the reader from the real question in the case, viz: what was understood by the king to be the eastern boundary of New York in 1741, when he declared in his commission to Gov. Wentworth that his province extended westerly "to his majesty's other governments." It is not deemed necessary to take any further notice of this part of the report. 4. The government of New York never having made any settlements to the eastward of a twenty mile line from the Hudson, it was quite important for the author of this manifesto to produce if possible some evidence of an early claim to territory beyond such line. This he attempted to do by referring to sundry grants made by that government of lands alleged to be situated, not indeed upon Connecticut river nor any where near it but towards it, and a little beyond a twenty mile line. The force of this evidence must depend wholly upon the intent of the governors of the province in making the grants. In order to have any weight whatever it must appear that the grants were made with the knowledge that the lands were beyond such line, and with the understanding that the territory covered by them was within the province. If the grants were issued under misapprehension or without the knowledge of the granting officer of their eastern extent, they would of course have no tendency to prove the point which the author sought to establish. In order to judge of the weight which ought to be given to this evidence it seems necessary to have some understanding of the general character of the early New York patents. Perhaps this may be sufficiently shown by quoting the language of Surveyor General Colden, found in a report made to Gov. Cosby in 1732, upon the state of the lands in the province. He speaks of these grants as follows: * X "There being no previous survey to the grants, their boundaries are generally expressed with much uncertainty, by the Indian names of brooks, rivulets, hills, ponds, falls of water, etc., which were and still are unknown to Christians. * This has given room to some to explain and enlarge their grants according to their own inclinations by putting the names mentioned in their grants to what place or part of the country they please, of which I can give some particular instances where the claims of some have increased many miles, in a few years, and this they commonly do by taking some Indians in a public manner to show them places as they name to them, and it is too well known that an Indian will show any place by any name you please for the small reward of a blanket, or a bottle of rum." Doc. Hist. N. Y., vol. 1, p. 383. The grants which are named in Mr. Duane's State of the Right, as covering lands in the disputed territory are the following, viz: 1. The Manor of Rensselaerswick, granted in 1685. 2. Westenhook in 1705. 3. Hoosick in 1688. 4. Wallumscoick in 1739; and 5. The patent to Godfrey Dellius in 1696. An examination of each of which will form the subject of the residue of the present paper. The only one of these five grants in which the descriptive words give any intimation that any part of the land might be situated eastward of a twenty mile line from the Hudson is that of the manor of Rensselaerswick, and the language of that was considered so equivocal that it was for some |