GOVR TRYON TO LORD HILLSBOROUGH.

[ Lond. Doc. XLIII.]

New York, 1. Septr. 1772. My Lord-I have had the honor to receive your Lordship's dispatches Nos 11, 12 & 13. It is a matter of real concern to me to learn the consideration of the Canada Claims has not undergone a final decision. Upon a more strict examination of the claims of the French grantees to lands within this Governt I cannot be persuaded that the last Treaty of peace, or the articles of the Capitulation at the surrender of Canada gives any valid title to such claims. The territory southwards of St. Lawrence River has been always acknowledged the property of the Five Nations, subjects or allies of Great Brittain, & as the French settlements, as well as grants within that district were made, not under the sanction of Cession, purchase or conquest, but by intrusion, the justice of the Title of those claimants seems to rest on His Majtys generosity which will operate no doubt as powerfully in the behalf of those Officers & Soldiers, who now hold a great part of those disputed lands under grants from this provce in consequence of His Majesty's proclamation in 1763.

LORD DARTMOUTH TO GOVR TRYON.

[ Lond. Doc. XLIII. ]

Whitehall 4 Novr 1772.

The State of the French Claims on Lake Champlain appears to me, as far as I am at present informed to be a consideration of great difficulty and delicacy, and by no means of a nature to admit of an hasty decision. Those Claims are now before the Board of Trade in consequence of a reference from the privy Council, and I will not fail from what you say of the State of the Colony, as well in respect to those Claims as to the increasing disorders & confusion on the Eastern Frontiers in general, to press an immediate attention to both these important considerations.

The whole of this very important business will, I am persuaded, be discussed by the Lords of Trade with that impartiality that has always distinguished their conduct; I shall therefore avoid saying any thing more upon that subject or upon the Canadian Claims further, than, that I think it proper to observe that the proposition in your letter N° 43, that all the territory on the south side of the River St. Lawrence was the property of the five Nations, and therefore that every Canadian Grant on that side of the River, was an encroachment on the British possessions, does not appear to me, from any information I have been able to collect, to be maintainable on any fair ground of argument; an observation which I think I am called upon to state to you, lest by my silence on that subject I should appear to acquiesce in a proposition that, if adopted in the extent you state it, would strip one half of the King's new subjects of their ancient possessions and must spread an alarm that may have very fatal consequences to the King's interest.

I am, ettc.

DARTMOUTH.

MINUTE OF MR. EDMUND BURKE ATTENDING THE BOARD OF TRADE.

Thursday Novr 12th 1772 At a meeting of His Majesty's Commrs for Trade & Plantations Present, Mr Gascoyne, Lord Greville Lord Garlies; The Earl of Dartmouth, one of His Majesty's Principal Secretaries of State, attending

Mr. Edmund Burke attended & moved their Lordships that he might be heard by his Council, as well in behalf of the Province of New York as of sundry persons, Proprietors of Lands within the said Province, under grants from the Governor and Council thereof, against the confirmation by the Crown, of any grants made by the French King or the Government of Canada-within the limits of the said Province of New York.

Their Lordships upon consideration of Mr Burke's motion, agreed that he should be heard by his Counsel, as he was desired, so soon as his Councel should be prepared, to acquaint the Secretary therewith, in order that an early day might be fixed for the further consideration of this business. Ordered that the Secretary do acquaint Monsr Lotbiniere who now attends to solicit the Confirmation of two seigneuries on Lake Champlain, of which he claims the possession, with Mr. Burke's application to be heard by counsel, and that he will also be at liberty to be heard by his Counsel in support of his pretensions if he thinks fit.

GREVILLE.

GOVE TRYON TO LORD DARTMOUTH. EXTRACT.

New York 5 January 1773

The opinion I presumed to give your Lordship respecting the Canadian Claims, was grounded on the following facts, which if I am rightly informed are capable of satisfactory proof. I hope considering the importance of the subject, to be excused in submitting them to your Lordpps consideration.

The Dutch, who first settled this Colony, claimed the whole of Connecticut River and Lake Champlain, and all the Country to the Southward of the River St. Lawrence down to Delaware River; this appears from many ancient Maps, and particularly from Blair's and Ogilby's, which I have had an opportunity of seeing. In 1664, King Charles the Second granted this country to the Duke of York, expressly comprehending all the Lands from the west side of Connecticut River.

On a late actual survey by Commissrs from this & Quebec Governt, the head of that River is found to lie several miles to the Northward of the Latitude of forty five degrees, lately established by his Majesty as the boundary between this Colony and Quebec.

A west line therefore from the head of Connecticut River (which will comprehend Lake Champlain) has been always deemed the ancient boundary of New York, according to the Royal Grant; nor has it been abridged but in two instances. His Majtys proclamation limiting the extent of Quebec, and an agreement confirmed by the Crown with Connecticut. Every Act and Commission subsequent to King Charles's grant, describes the Province in General words "The Province of New York and the territories depending thereupon " and supposes its limits to be notorious, & properly established by that grant. On this principle the Judicatories, here have grounded their determina[VOL. I.] 47

tions, in suits between the New York Patentees, and the N. Hampshire claimants. The original Colony of New Hampshire as it was granted by the Council of Plymouth, & confirmed by the Crown about the year 1635, lay altogether on the East side of Connecticut River, which it did not reach by 20 miles. As it was new modelled & enlarged by the Commission to Govr Benning Wentworth in 1742, no distance from the sea, or station is given: but it is, bounded to the west by the King's other Govern and could not comprehend the Lands on the west side of the Connecticut River which were already a part of New York, as established by the Grant of the Crown abovementioned. Hence on the footing of original Right, our Courts determined, that the New Hampshire Grants were void for want of a legal authority in that Governt. They considered his Maj ys order in Privy Council in 1764, as a confirmation of a prior Right, & not as having altered or enlarged the ancient Jurisdiction.

I am now cautious to give an opinion on the propriety of this decision, but barely mention the principles as they have been represented to me for your Lordp's information.

Whether the Dominions of the French in Canada interfered with the bounds of this Colony as anciently established by King Charles the Second, remains to be considered. All the Country to the Southward of the River St. Lawrence originally belonged to the five Nations or Iroquois, and as such, it is described in the above mentioned and other ancient Maps, & particularly Lake Champlain is there called "Mere des Iroquois," Sorel River which leads from the Lake into the River St. Lawrence "Rivier des Iroquois," and the Tract on the East side of the Lake, Irocoisia.

So early as the year 1683, the Five Nations by Treaty with the Govr of New York, submitted to the Sovereignty & protection of Great Brittain, and have ever since been considered as subjects, & their Country as part of the dominions of the Crown.

By the Treaty of Utrecht, the French King expressly recognized the Sovereignty of Great Brittain over those Nations.

Godfrey Dellius's purchase from the Mohocks, & grant under the Seal of New York in the year 1696, is esteemed a memorable proof of the Right of this Province, under the Crown, to the Lands on Lake Champlain. It comprehends a large Tract extending from Soraghtoga along Hudson's River, the Wood Creek, & Lake Champlain, on the East side upwards of twenty miles, to the northward of Crown Point; & it is thought a circumstance of no small importance, that this Grant was repealed by the Legislature in the year 1699, as an extravagant favour to one subject; which act would have been a nullity if that territory had not been within the jurisdiction of this Province. Altho' the Canadians by their Savage depredations had long obstructed the settlement of this Frontier part of the Colony, it was not till the year 1731, that, in profound peace, they took possession of Lake Champlain & ordered Fort St. Frederick at Crown [point]; & afterwards another Fort at Ticonderoga. This was regarded as an act of hostility, and as such complained of & resented; and the Colonies before the late war, to disappoint so dangerous a project, raised money and Troops to erect Fortifications on His Majesty's lands, at, or near Crown Point. The operations became more general, and the success of His Majtys arms, rendered it unnecessary.

The French had endeavored to fortify their encroachments by Negociations; in 1756 their Ambassador insisted as a condition of the Convention then proposed that Great Brittain should relinquish her claim to the south side of the River St. Lawrence, and the lakes which discharge themselves into that River; a demand which was peremptorily rejected, and put an end to the conference. I depend, My Lord on Entiv's history of the late war for the truth of this Fact. If it is well founded, it seems to show in a strong point of light the sense of the Crown at that Crisis, respecting the territory under consideration.

If it was necessary, My Lord, to add prior instances of the encroachments of the Canadians, I would beg leave to refer your Lorde to Governor Burnet's Speeches to the General Assembly of this Province in 1725, 1726 & 1727, and the resolutions of that house, stated in their Journals, deposited

in the Plantation Office, on the subject of those encroachments. That Gov in his speech of the 30th Sept 1727, has these remarkable words: "I have the satisfaction to inform you, that your Agent has been very active in solliciting the affairs of this Provce, and particularly that he has succeeded in obtaining, that pressing instances might be made at the Court of France, against the Stone House built at Niagara," ettc. This shows that the Governt at home so early as that period viewed this measure of the French as an encroachment on the limits of this Colony.

I assure your Lord that I had no idea that the decision of this controversy could affect the ancient possessions of any of his Matys new subjects. Unacquainted with their settlements on, and near the south side of the River St. Lawrence, I carried my views no further than the Province over which I preside and which, as it is now limited does not include the whole of Lake Champlain. I have frequently been informed, by those on whom I thought I could depend, that when the French, on the approach of Sir Jeffry Amherst in 1759, abandoned Crown Point, there were found no ancient possessions, nor any improvements, worthy of consideration on either side of the Lake. The Chief were in the environs of the Fort, and seemed intended meerly for the accommodation of the Garrisons, and I have reason to believe, that even at this day, there are very few, if any, to the Southward of the latitude forty five, except what have been made since the peace, by British subjects under the grants of this Colony. I had the honor of transmitting to the Earl of Hillsborough a paper on this subject drawn up by Council here, at the request of the reduced officers, to whom & the disbanded Soldiers a very considerable part of the Country on the East side of Lake Champlain, hath been granted in obedience to his Majtys Royal proclamation. The proof of several material facts, which influenced my opinion, are there stated, and to which I beg leave to refer your Lordr.

LORD DARTMOUTH TO GOVR. TRYON.

Whitehall 3 March 1773

With regard to the grants heretofore made by the Governors of Canada adjacent to Lake Champlain, and by the Govr of New Hampshire to the west of Connecticut River, I do not conceive that the titles of the present claimants or possessors ought to have been discussed or determined upon any argument or reason drawn from a consideration of what were or were not the ancient Limits of the Colony of New York. Had the soil and jurisdiction within the Provce of New York been vested in proprietaries as in Maryland, Pennsylvania, Massachusets Bay, or other Charter Govern ́s it would have been a different question: but when both the soil and jurisdiction are in the Crown, it is I conceive, entirely in the breast of the Crown, to limit that jurisdiction and to dispose of the property in the soil in such manner as shall be thought most fit: and after what had passed, and the restrictions which had been given respecting the claims, as well on Lake Champlain, as in the district to the westward of the Connecticut River, by which the King had reserved to himself the consideration of those claims, I must still have the misfortune to think that no steps ought to have been taken to the prejudice of the claimants under the original Titles. At the same time confident of your integrity and impressed with the most favorable sentiments of your conduct, so far as rests upon the Intention, I will not fail to do the fullest justice to the explanation of it, contained in your letters upon this subject, and there is no one of your friends, that will be more forward than myself to bear testimony of the sense of your zeal for the King's service, or more ready to concur in any proposition, that may induce the conferring on you such marks of the King's Favor, as shall be judged adequate to your great merit.

I am Sir your most obedt humble servt

DARTMOUTH.

EDMUND BURKE ESQR

TO THE SECRETARY-15 JUNE 1773.

Sir-I am honoured with your letter of the 14th wishing to be informed, on whose behalf, and on what question, I desire to have Counsel heard against the Canadian Grants on Lake Champlain. You will be so good as to acquaint their Lordpps that I would have Counsel heard on behalf of the grantees under New York Governt who are composed in a great measure of half-pay Officers, that have received grants, agreeably to his Majesty's proclamation. And I am instructed to take care of the interests of these Grantees, not only so far as they are concerned, but also so far as the territorial rights of the Province may be affected by the French claims.

I beg leave to be heard by Counsel (if their Lordpps should not expressly confine the Counsel) to all such matters, as they, or the parties shall advise as proper and effectual towards invalidating the said French Grants, and establishing the rights of the New York Grantees.

I am with great regard Sir

Your most obedt and humble servt

EDM: BURKE.

EXTRACT FROM A REPORT

OF A COMMITTEE OF COUNCIL OF THE PROVINCE OF QUEBEC RELATIVE TO COMPLETING THE BOUNDARY LINE BETWEEN THAT PROVINCE AND NEW YORK, DATED QUEBEC, augt 4, 1773.

We think

[ Council Minutes XXVI. ]

Your Honour may safely give the necessary Directions for going on with the service immediatly under the following Reservations, which we consider as the only expedient for Resolving the many Difficulties which have occurred, and without which we must find ourselves under the necessity of deferring the Proceedings till another year.

That every thing shall remain between the two Provinces exactly in the same situation as well with regard to Jurisdiction as Property after the Line is run, as it does now until his Majesty's Pleasure upon that subject shall be known.

That his Excellency the Governor of New York will engage not to pass any new Grant or Grants of Land to the southward of the Line, the property of which is now or has at any Time been claimed under any Title from the Crown of France.

That we do not by our Consent to the running of the Line give up or in any manner recede or depart from any Right or Claim to Lands to the Southward of the Line which have at any time been or now are disputed between the two Provinces, but that the whole shall be submitted to his Majesty's Pleasure without Prejudice or advantage of any kind to be taken of this Instance, which we are willing to show, tho' at some Hazard, of our Desire of a good Correspondence at all times. with the Province of New York.