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

2

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.

2 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. Ibid., 116, 117.

4

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."2

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. . . . . to 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

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.)

2 Records, &c., in Hazard, 120-122. 8 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 Massachusetts it was now represented, that she

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

1649.

July.

66

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

Retaliatory

action of Massachusetts.

May 2.

At this stage of the business, the Massachusetts Commissioners 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. 3 Mass. Rec., II. 269, 270.

cipal harbors of Massachusetts had been required to pay such a duty "towards the maintenance of the fortification. for the defence of the said harbors." The law had comprehended a proviso, that "none of the vessels of our confederates, or any other parts, where our ships are free of customs, &c., shall pay any custom or imposition in any of our harbors."1 That exemption was now withdrawn. The other Commissioners naturally interpreted the withdrawal as "a return or retaliation upon the three Colonies for Saybrook." They forwarded to Massachusetts a remonstrance against her action, and with proper dignity "desired to be spared in all further agitations concerning Springfield.” 2

(

The Commissioners of the two neutral Colonies, who in this transaction disapproved the course of Massachusetts, were men of eminent integrity and good Merits of the judgment. But the correctness of their decree controversy. is not unquestionable. Massachusetts was right in affirming that Springfield was within her chartered limits, and that nothing had taken place to impair her title. She was right in doubting whether the collection of a duty at Saybrook from Springfield people had ever been authorized by the General Court of Connecticut; though this was a subordinate point after that government assumed the responsibility of the claim. Massachusetts was right in maintaining that the money, which Connecticut proposed to raise by an impost on subjects of another jurisdiction, was for a large purchase of her own, consisting not only of a fort, but of other property. In point of fact, she was right in calling in question the possession by Connecticut of any patent rights whatever; for the patent which had been produced when the confederation was made was only that which had been "granted by the Earl of Warwick to certain nobles and gentlemen" represented by Fenwick; all that the Con

1 Mass. Rec., II. 131.

2 Records, &c., in Hazard, II. 140, 142, 143.