CHAPTER II.

JURISDICTION OF THE CONNECTICUT TERRI

TORY.

THE claim of England to the jurisdiction of the territory included in Connecticut rested on the discoveries of the Cabots in 1497, and more especially in 1498. This claim, however, was allowed to lie dormant until the organization of the London and Plymouth companies in 1606, when the territory now in Connecticut was included in the grant to the Plymouth Company. No effort was made to reduce this territory to possession. The Dutch were allowed to plant a colony at New Amsterdam, and the only white men who adventured on Long Island Sound were occasional Dutch skippers. The first of these was Adrian Blok, who in 1614 found the mouth of the Connecticut River, and explored the river as far north as the present site of Hartford. As the tides affect the Connecticut much less than they do the Hudson, the Dutch naturally gave the former the name of Varsche (or Fresh) River. Blok was merely a discoverer, and he sailed on to Narragansett Bay, leaving but a geographical impress on the territory, whose importance to the Dutch lay only in its trade in peltries.

In 1620, and without the original permission of the Plymouth Company, English immigration fixed its first grip on the New England territory. The Plymouth Company itself did none of the work of colonization. It gave or sold patents for colonies, and, after a reorganization, gave up its imbecile existence in 1635, and returned its charter to the king, having first carefully divided up the soil among its own members. The allotments which are of interest in our subject were those of the Duke of Richmond and the Earl of Carlisle, between the Hudson and Connecticut rivers; and those of Sir Ferdinando Gorges and the Marquis of Hamilton, between the Connecticut River and Narragansett Bay. None of these grants was ever asserted or made troublesome to the colonists, with the exception of the Hamilton grant.

The common story in our histories is that the Council of Plymouth in 1630 granted the territory now in Connecticut to the Earl of Warwick, and that he, in 1631, transferred it to Viscount Say and Sele, Lord Brooke, and others, who were disposed to establish another Puritan colony in New England. They were detained in England by the approach of civil war; but their agents, Winthrop at Boston and Fenwick at the mouth of the Connecticut River, maintained their claims, and gave the settlers in the upper Connecticut Valley either a private or a tacit permission to enter their domain. In 1662, with the consent of the surviving

patentees, the jurisdiction was transferred to the Connecticut colony, which could thus claim unbroken continuity of title from the beginning of English colonization in America.

The insistence of Connecticut authorities on this chain of evidence was undoubtedly due in great measure to the desire to make out a title paramount to anything which the rival New Haven colony could offer, and to put the New Haven colonists into the legal position of original trespassers, whose defect of title could never be cured after the grant of the charter in 1662. Even after this result had been attained, and New Haven had submitted to incorporation with Connecticut, another motive to continue the old claim was found in the claims of the Hamilton family and the colony's desire to antedate them with its own. The story above given made out an admirably harmonious title from beginning to end; and it was natural that it should become the official Connecticut account.

The foundation of the whole account, the grant to Warwick, is altogether mythical; no one has ever seen it, or has heard of any one who claims to have seen it. It is not mentioned even in the grant from Warwick to the Say and Sele patentees in 1631. In that document, "Robert, Earl of Warwick, sendeth greeting in our Lord God everlasting to all people unto whom this present writing shall come." He "gives, grants, bargains,

In

sells, enfeoffs, aliens, and confirms" to the Viscount Say and Sele, Lord Brooke, John Pym, John Hampden, and others, the soil from the Narragansett River to the Pacific Ocean, and all jurisdiction "which the said Robert, Earl of Warwick, now hath or had or might use, exercise, or enjoy." What jurisdiction he had, or whence he had acquired it, he is careful not to say; the deed is a mere quitclaim, which warrants nothing, and does not even assert title to the soil transferred. the Hamilton grant, on the contrary, the claim of title is carefully and fully stated. Why the Warwick transaction took this peculiar shape, why Warwick transferred, without showing title, a territory which the original owners granted anew to other patentees in 1635, are questions which are beyond conjecture. It is evident, however, that the New Haven colonists were until 1662 on an absolute equality with their brethren of Connecticut; that all were legally trespassers; and that the charter of 1662 could have no retroactive effect in validating the Say and Sele title, for that was a nullity. The charter of 1662 is the only legal title of Connecticut; the only legal titles prior to it, the grants of 1635, were barred by prescription before the Hamilton heirs undertook to prosecute their claim. In yielding to the final junction, New Haven yielded to royal power, not to a better title enforced by law.

The jurisdiction of Connecticut had a far better

title than could have been conferred by any charter; and the titles of both Connecticut and New Haven stood on exactly the same footing. In 1630 the territory was a wilderness. The king of England had laid claim to it by virtue of the undisputed fact that Sebastian Cabot might possibly have caught a distant glimpse of it as he passed by the coast more than a century before. The king granted it to a company which had not yet either settled or granted it. Just before the outbreak of the Civil War in England, the territory was reduced to possession by immigrants, who quieted the claims of the Indians by contract, and enforced the contract by public force. The Civil War and its consequences upon royal authority lasted long enough to cover the time which human law takes as a title by prescription. When Charles II. returned, who could show a better title to the soil of Connecticut than the colonists themselves?

This could cover, at the best, only the title to the soil; the civil jurisdiction is of more importance. The first settlements, at Hartford, Windsor and Wethersfield, were an irruption of subjects of the king of England into an unorganized and unoccupied territory, very much like the first settlements in the territory of Iowa, more than two centuries later. But there was one very great difference between the two cases: the Iowa settlement was an irruption of individuals; the Connecticut settlement was an irruption of organized