as to

to have one Commissioner more; or otherwise they should be content that any other of the Colonies should have the same privilege to have three Commissioners to the other two, if such Colonies would bear the like proportion of charge with the Massachusetts." "In regard of the different conditions of some of the Colonies wealth, it was proposed that "some other more safe and equal course might be agreed upon" than the apportionment of pecuniary burdens according to numbers. Last came a proposal, which is scarcely to be explained except by keeping in mind the recent offensive exercise of authority on the part of the Commissioners in respect to the collection of an impost from navigators of Connecticut River. "Whereas there be divers orders made by the Commissioners, as about admission of church-members, maintenance of scholars at Cambridge, about a general trade, &c., all which orders are only by way of advice to the General Courts of the several Colonies, yet, forasmuch as orders by way of advice are in some cases introductions to orders of power when the advice is not followed, it is to be propounded if it were not reasonable to be declared, that in such cases, if any of the Colonies shall not think fit to follow such advice, the same not to be accounted any offence or breach of any Article of our Confederation, or to give power or occasion to the Commissioners to proceed to any act of authority in such

Having finished this communication, the Massachusetts Commissioners proceeded to the discussion respecting the

Further dis

cussion of the impost.

Sept. 12.

tax demanded by Connecticut at Saybrook fort. Repeating, and enlarging upon, their former arguments, they now further urged,- 1. that, on well-known principles of the common law, the possession of an estate implies the possession of an unobstructed right of way to it; 2. that if Saybrook fort

1 Records, &c., in Hazard, II. 108, 109.

2

Ibid., 109-113.

was an incidental benefit to Springfield, so it was to "New Haven and Stamford, and all the towns on that side,” which then ought to bear their share of the burden; 3. that, for the same reason, New Haven was not an impartial umpire in the case; 4. that no patent of Connecticut had been produced, and that such a document might throw light on the question in dispute; 5. that, if lawful, the impost was not expedient, but "a bone cast in by Sathan to interrupt our happy peace." To these "fresh arguments" Connecticut replied,- 1. that the commonlaw rules as to rights of way did not "hold universally true, nor could be applicable to the present case; 2. that the benefit, derived by Springfield from the fort, far exceeded that enjoyed by the settlements on the Sound; 3. that it was for the Commissioners to determine the question respecting the propriety of their interfering to settle the dispute; 4. that "the copy of the patent was seen when the confederation was made," and "the patent had been lately owned by the Honorable Committee of Parliament;" and, 5. that they hoped "that the pleadings for truth might not prejudice peace.' It was further suggested, that the assumed fact of the position of Springfield "within another jurisdiction" was "not so cleared but that the jurisdiction of Connecticut had liberty for their inquiry, and conceived they had cause to make claim thereunto."4

"3

Massachusetts answered by desiring,- 1. express information upon the point whether the duty was levied to pay "the purchase of the fort at the river's mouth, or as custom ;" and, 2. a copy of any "order or orders of Connecticut" for the demand of this impost

1 Ibid., 113, 114.

The patent here spoken of was the conveyance of the Earl of Warwick, in 1631, to Lord Say and Sele, Lord Brooke, and their associates, of which conveyance the people of Connecticut

conceived themselves to have obtained a sort of transfer. (See Vol. I. 605; comp. Records, &c., in Hazard, II. 123.)

Records, &c., in Hazard, II. 119, 120. 4 Ibid., 116, 117.

or contribution from citizens of Springfield. And she proceeded to call in question the right of the Commissioners, under the Articles of Confederation, "to make an order to enjoin custom or impost to be paid by any particular town to its own or any other jurisdiction." The replications of Connecticut were,—1. that the impost was designed "for the erecting and maintaining a fort;" 2. that there was "an order of the General Court of Connecticut," making Springfield liable;1 3. that, as to the power of the Commissioners, they should be silent.""

The Commissioners of New Haven, under the charge of bias, hesitated to proceed. But that objection was withdrawn, and they, with their Plymouth colleagues, reviewed the case. They "found not sufficient cause to reverse what was done the last year," while, on the other hand, as the orders of Connecticut for laying the impost were not forthcoming, "they thought it not fit . . . . . make further conclusion upon what was now on either part presented or answered." They desired that those orders might "be brought and presented to the Commissioners for further consideration, if there were cause, the next year; and that in the mean time the two Colonies.

to

... would agree upon some equal and satisfying way of running the Massachusetts line." The communication which had been received from Massachusetts respecting explanations and amendments of the Articles of Confederation led to no practical result of importance. The Commissioners expressed the opinion, that "no such interpretation should be put upon any one Article as might

1 The original order (passed Feb. 5, 1645) laid an impost of" twopence per bushel upon all grain exported out of the river" (Conn. Rec., I. 119); but officers to collect it were appointed only for Wethersfield, Hartford, and Windsor. (Ibid., 121; comp. 170). After this meeting of the Commissioners,

and just before another was to take place, the General Court expressly declared (June 6, 1649) that Springfield had been "intentionally included" all along. (Ibid., 189.)

* Records, &c., in Hazard, 120 – 122. Ibid., 122, 123.

cross the direct scope or import of the rest, or any of them." They disavowed all right on the part of the Confederacy to interfere with the affairs of any Colony, except so far as, for the purposes contemplated in the confederation, power was expressly conferred by the terms of that compact. They said that questions might be expected to present themselves, which it would not be profitable or prudent to anticipate, and the solution of which would be best sought when they arose. They suggested a caution "that the pretension made to maintain a peculiar and entire jurisdiction in each Colony within itself hinder not the attainment of the public and weighty ends of the combination." What should be done in the case of a "breach of covenant" by any Colony, they "conceived could not now be so well resolved, as when the case, in the compass and with all circumstances, should be considered." They approved, and recommended for the adoption of the several Colonies, the proposal of Massachusetts, that, when a measure within the competency of the Commissioners should fail to obtain the vote of six of their number, the consent of three of the General Courts should be equivalent. The other proposed changes in the conditions of the Federal Union they "feared would prove dangerous and inconvenient to all or some of the Colonies." Finally, they professed that as to "cases where the four General Courts had not given the Commissioners power to determine," they "did not apprehend how their recommendations could grow introductions to orders of power; if they did, they should readily close with the honored Court of the Massachusetts in providing against such an inconveniency."1

A special meeting of the Commissioners was convened at Boston in the following summer. In behalf of 1649. Massachusetts it was now represented, that she

1 Records, &c., in Hazard, II. 114-116; comp. 135.

July.

had formerly made an agreement with Mr. Fenwick, who represented the patentees of Connecticut, to run the boundary line between their respective jurisdictions at their joint expense;1 that it had been run accordingly, but at her charge, Mr. Fenwick having "failed to send in any to join ;" and that, if Connecticut was dissatisfied, and desired the work to be done anew, Connecticut ought to bear the cost. These proceedings were differently stated on the other side; the proposal was declined; and the main contest was revived. The nature of the past relations of Springfield to Massachusetts and Connecticut respectively was now more carefully discussed; and on the part of Massachusetts it was denied, both that there was "any fort at all in being worthy the name of a fort," and that "any instance could be given of any government in the world that had compelled the people of any other jurisdiction to contribute to the erecting of a fort or place of strength, by which they might rule over them and order them at pleasure, as well as be a protection to them." Still, the Connecticut Commissioners failed to produce their alleged patent, or a copy of it, or any formal act of their General Court imposing the tax on Springfield vessels.2

At this stage of the business, the Massachusetts Com

Retaliatory

action of MassachuBetts.

May 2.

missioners produced a vote passed two months before by their General Court, which, reciting the decision that had been made against Springfield, laid an impost, similar to what was exacted at Saybrook, on articles "imported within the Castle" of Boston from either of the other three confederate Colonies, or exported to them "from any part of the Bay." For four years, "all strangers' ships" entering the prin

1 I do not know any positive proof of this alleged agreement. But see Records, &c., in Hazard, II. 18; Mass. Rec., II. 44, 264; and comp. Fenwick's

letter of October, 1639, to Winthrop, in Hutch. Coll., 107.

2 Records, &c., in Hazard, II. 135-140. Mass. Rec., II. 269, 270.