The Dutch were not passive under those Encroachments, but set up the Arms of the States-General in different Places to assert their Right; and in 1642, the Connecticut People having overspread Long Island as far as Oysterbay, Kieft, the Dutch Governor, broke up their Settlements.

*

These Disputes occasioned the Colonies of New-Haven and Connecticut to send Deputies to the Dutch Governor, at NewAmsterdam (New-York) to treat about Boundaries. The Dutch offer to let the English continue at Hartford on the Payment of a certain Rent for the Land. But this was not complied with; and the English trusting to their superior Strength, still kept extending their possessions till in 1650, a final Settlement of Boundaries was made at Hartford; the Account of which is as follows, and ought to be attended to as a very material Transaction:

Four Delegates, Willet and Baxter on the Part of the Dutch, Bradstreet and Prince on the Part of the united Colonies, met at Hartford as Arbitrators of the Dispute about Bounds and Limits; before whom, says the Author of the Susquehanna Case, “Peter Stuyvesant, Esq; Governor of the Dutch New "Netherlands, came personally and continued the Claims his "Superiors, their High Mightinesses of the united Provinces "and the Right Honorable the West-India Company had to the "Lands in Question, (viz. the Connecticut Lands, Long Island, "&c. ) of which he desired a full Surrender and Satisfaction, “according to the Quality of the Case."

The Arbitrators or Delegates agreed and determined thus, viz. 1st. "That the Bounds upon Long-Island be, &c. [this is not material to the present Question.]

2dly. "The Bounds upon the Main, to begin upon the West Side of Greenwich Bay, being about four Miles from Stam"ford, and so to run a northerly Line twenty Miles up into the "Country; and after as it shall be agreed between the two "Governments of New-Haven and the Dutch--provided the "said Line come not within ten Miles of Hudson's River-The "Dutch shall not any Time hereafter build any House or Habi"tation within six Miles of the said Line-The Inhabitants of "Greenwich to remain (till further Consideration thereof be "had) under the Government of the Dutch."

66

3dly. "The Dutch shall enjoy all the Lands at Hartford that "they are actually possess'd of, known, or set out by certain 'Bounds; and all the Remainder of the said Lands, on both "Sides of Connecticut River, be and remain to the English "there."

* Pro Agro Nostro Hartfordiensi annuo persolvent Decimam Partem Reventus Agrorum, &c. SMITH'S History of New-York.

"The aforesaid Bounds and Limits, both upon the Island "and upon the Main, shall be observed and kept inviolable, "both by the English of the united Colonies, and all the Dutch "Nation without any Encroachment and Molestation, until a "full Determination be agreed upon in Europe, by mutual “Consent of the two States of England and Holland."

This Determination bore hard upon the Dutch Rights, and it is evident that they submitted to it only out of Necessity, as the English were then become able to take the whole Country from them. This further appears by a letter of the Dutch West-India Company, to Governor Stuyvesant of 24 Dec. 1660; in which they say that "they were not inclined to stand by "the Treaty at Hartford, and proposed to sue for redress on "Long-Island and the Fresh-Water (Connecticut) River, by "means of the States Ambassador."

With the above agreement respecting Limits in full Force between the English and Dutch, and the latter still in actuai Possession of New Netherlands; Mr. Winthrop solicited and obtained the present Connecticut Charter, dated 23d April, 1662, the Limits of which, are in the following confused, defective and unintelligible Words:

“All that Part of New-England in America, bounden on the "East by Narraganset River, commonly called Narraganset "Bay, where the said River falleth into the Sea; and on the "North by the Line of the Massachusets Plantation, and on the "South by the Sea; and in Longitude as the Line of the Mas"sachusets Colony running from East to West-that is to say, "from the said Narraganset Bay on the East, to the South Sea "on the West Part."

And the Author of the Susquehannah Case allows the same saving to be intended in this Charter, as in the grand Plymouth Charter, and the other derivative Grants under it; viz. that the "granted Premises, or any Part thereof, be not "then actually possessed or inhabited by any other Christian Prince or State "

Thus, for twenty-six Years the Connecticut Settlers had continued without any Charter, and, for a considerable Time also, without any Sort of Title to their Lands. It will be proper, then, to enquire what Extent of Title they had acquired, or set forth to the Crown, at the Time of passing the Charter; because that will better enable us to determine what Tract or Space of Country their Charter might be designed to cover.

In 1635, as has been hinted, John Winthrop, Esq; the younger, (the same mentioned above, who was afterwards Governor of Connecticut) had a Commission under Lord Say and Seal, Lord Brook, &c. appointing him Governor of Con

necticut River, with Instructions to make a Settlement on that River, and build a Fort on an Island near its Mouth; which he did, and named it Fort Saybrook, after the two Lords, Say and Brook.

Appendix No. II.

George Fenwick, Esq; succeeded Mr. Winthrop, as Governor of the Fort, and Settlements made near it at the Company's Expence. But the Chiefs of that Company, becoming deeply engaged in the Scene of Things then carrying on in England, laid aside all Thoughts of an American Settlement. Mr. Fenwick, therefore, in 1644, sold the Fort at Saybrook and its Appurtenances to the Hartford Colony. Those Appurtenances are decided to be, "all the Land on Connecticut River," which could not mean the whole River, because the Appendix No. III. upper Parts of the River were in the prior Massachusets Grant, &c. He could only mean “all the Lands in the Saybrook Jurisdiction,” which might be about twelve Miles on the River; for an Extent of twelve Miles was generally considered in those Days, as appurtenant to a Fort. Nor did he give them any other Right, but by a Committee of five, (of which himself was to be always one) to give or set out to others what Lands were undisposed of, in the Tract he meant to convey. That the Extent of this Tract could not be far on each Side of the River is certain. New Haven Bounds would not have permitted them to go far Westward of the River, and the Deed or Writing of Mr. Fenwick, shews that he could not convey to them any Lands far Eastward of it. He says"The Lands, from Narraganset River tothe Fort at Saybrook, "shall fall in under the Jurisdiction of Connecticut, if it come "into my Power'-a plain Proof he had not Power then to give them a Title to those Lands; nor does it appear how he caine by his Power even for the Sale of Fort Saybrook.

This then is all the Right, under Lord Say and Seal, &c. which they could pretend to have, when they applied for their Charter. Mr. Winthrop, when he got to England, was in hopes to obtain some further Right under that Lord; but it seems his Lordship did not then know what was become of his own Deed. He appears now to have neglected, or forgot, his American Right; and was willing that Mr. Winthrop might get carved out of it, what the old Colony of Hartford had settled and improved. His Words are "Concerning that of Lord Say and Seal's "Connecticut, I am not able to remember all Letter Appendix, No. 5. "the Particulars. Mr. Jessop, when we had a "Patent, was our Clerk, and he, I believe, can inform you "best about it. I have desired my Lord (Chamberlain) to wish “him so to do."--It will appear afterwards, that New-Haven Colony absolutely refused to be included in this Patent; and

that Lord. Warwick, Lord Say and Seal, &c. had long before given them to know, that it was not intended

Appendix No. 20.

they should be under Connecticut.

The Bounds of Connecticut Patent then, were to be as his Majesty pleased, so far as the Lands were in the Power of the Crown to grant, or the Petitioners could shew any Right vested in them from former Grantees. But that Part of the Country lying between Naraganset and Connecticut Rivers, we have seen, was not included in the Purchase made from Mr. Fenwick. And if the King might grant it, on Account of Lord Say and Seal, &c. having waved their Right, such Grant was made long before by Charles I. to Duke Hamilton, extending from Naraganset to Connecticut River sixty Miles back into the Country. And if this Argument had been vigorously pressed, in Behalf of the Duke, when his Claim came to be discussed in 1665, before the Crown Commissioners, Connecticut, who could produce no legal Right or Title under Lord Say and Seal, would perhaps have been reduced to such scant Bounds, as would have left that Colony to be but of little Importance at this Day.

These being the Circumstances under which Mr. Winthrop obtained the Connecticut Charter; it is evident, that the Saybrook Purchase, and some small Purchases and Conquests from the Pequot Indians, contained all the Lands, for which he and his Associates could have any Pretence to solicit a Charter. And even with Respect to those Indian Lands, so far as they lay out of the Saybrook Purchase, they had no proper Right. For if the Acquiescence of Lord Say and Seal could give such Right, without a legai Conveyance, the same Acquiescence might be construed to be gool in Favor of Duke Hamilton.

This enables us, then to account for the Lameness of the Connecticut Charter, as well in its Preamble as in its Limits. For, although in the Massachusets Charter, King William recites the whole Title, viz. the first Grant to the Council of Plymouth, and that Council's Grant to Sir Henry Roswel, and the Royal Confirmation of the same, with the whole Process whereby it became void; yet the Connecticut Charter does not attempt to trace any Title from the Plymouth Company, but only sets forth in the Preamble, "that the said Connecticut or HartSee the Petition and "ford Colony, or the greatest Part thereof Charter in the Ap- 66 pendix. was purchased, and some other Part thereof

*

*There being no Purchases but that frou Fenwick, and some small Pieces from the Indians, surely if these made up the greatest Part of the Colony, the other Part could not reach Pennsylvania, nor any great Distance from Connecticut River.

"gained by Conquest, at the only Endeavours and Expence of "the said John Winthrop, &c."

SECTION III.

We proceed now to the Construction of the Connecticut Charter Limits. And, first, supposing not only the Saybrook Purchase, but all the Country from Naraganset to Connecticut River, and likewise New-Haven Colony, willing to be covered by it; yet that will give it no other Efficacy, with respect to other Places, than it had at first. By the original Saving in the great Plymouth Patent, which has always been expressed or understood to operate through all the Grants parcelled out of it, nothing could pass, which was "actually pos"sessed, at the Time of such Grants, by any other Christian "State."-And, therefore, it has been long held, by Men of the greatest Law-Abilities, that nothing could pass, by the Connecticut Charter, to the Westward of Connecticut River; the Dutch as already observed, having so long claimed and possessed that River, from its Mouth, at least one hundred Miles up. Connecticut and New-Haven Colonies, could only claim a Right in Lands, Westward of the said River, by Virtue of the Agreement subsisting between them and the Dutch, at the Time of obtaining their Charter; and not by Virtue of the Charter itself, which is quite silent as to Limits or Extent on that Quarter. Nay, the King could *not grant, and it is certain he did not intend to grant, what lay under the Dutch Claim, in Virtue of their prior Settlement, between Hudson's and Connecticut Rivers; because, two Years afterwards, when a Resolution was formed to expel the Dutch, he granted to the Duke of York all the Country which was considered as the Dutch Claim, making the West Side of Connecticut River, one of the Boundaries of the Grant. The Treaty at Hartford was but a temporary Agreement, which was only to be binding "until a full Determination in Europe, by the States of “England and Holland;" and, therefore, without the Ratification of the latter, which they refused, could vest no Right under them, to the Lands West of Connecticut River. Upon the Whole, then, if it had not been for the subsequent Settlement of Boundaries, made by the Royal Authority, after the Conquest from the Dutch, (by which Settlement, pursuing the Spirit of the Hartford Agreement, the Limits of the Con

*This is acknowledged by the Connecticut Commissioners, in their Letter to Governor Penn, dated December 18, 1773, as will appear afterwards.