SECTION I.

AS the claimants under New-Hampshire rely on their charters from that government as the pre­dicate and ground of their title to the property of the land in contest; so, on the other hand, the claimants under [Page 91] New-York, predicate and ground their title to the same land on the validity of their patents from New-York: This brings the point in issue between the respective claimants to this single question, namely, Which of the said governments conveyed the fee of the land in contest? For it is self-evident both could not. And up in exploring the controversy, and ani­madverting on the merits of the different claims, be it which it will that may be allowed to stand the test, and adjudged valid, it will of necessity invali­date the other. In the discussion of this subject, and searching into the merit of the respective claims, it is necessary to inspect into the validity of the grant from king CHARLES to the duke of YORK, from which foundation only, the government of New-York deduce their right of patenting the lands in contest; yet the matter of fact is, that neither the government of New-York as such, or any indi­vidual therein, has ever had any conveyance of any land from the duke of York, nor doth any landlord or person whatever, in the government hold the fee or property of their land, by virtue of any convey­ance from the duke of York; but they hold the fee of their lands on a very different footing, viz. by conveyance from the Crown; yet, if it be conceded to, that king Charles gave to his brother James duke of York, the fee of the lands west of Connecticut-river to the head of Delaware-Bay; and allowing the fee to be still vested in him, his heirs or assigns, upon this hypothesis no person in the province of New-York hath the fee or property of the land they pos­sess, the fee remaining the property of the duke of York, his heirs or assigns. And further, upon the same [Page 92]principle, those identical patents under the seal of New-York, which were laid on the New-Hampshire grants, are in their own nature, equally null and void, with all other conveyances of land in the said province which have been given by the crown, the fee thereof being vested in the duke of York, &c. So that the grantees under New-York and New-Hampshire, are both, upon this stating of the case, equally destitute of the fee of the land contested for: But, upon this stating, the grantees under New-Hampshire, have the argument of settlement, and oc­cupation, and possession, on their side; which is abundantly sufficient to give the priority, and pre­ference of title to them; so that neither the govern­ment of New-York or their patentees, gain any thing by building their title on the said grants to the duke of York; for if there be any thing in it, it de­feats their own title as well as that of New-Hamp­shire, proving too much for their purpose, or no­thing at all. But, if the lands contained in the duke of York's grant reverted back to the crown, then the duke of York's patent became extinct, null, and absolutely void, and is as though it never had been; whether the said reversion happened in consequence of the said duke's abdicating the throne—turning papist, or by any formal surrendery, or by any means whatever, provided the fee became revested in the crown, then the said charter became extinct, as aforesaid; so that whether the fee of the land in dispute still remains in the said duke of York, his heirs or assigns, or reverted, or was surrendered to the crown, none of all this will in the least justify the government of New-York or its patentees, in [Page 93]founding their pretensions of title to the lands afore­said, by virtue of the aforesaid grant from king Charles to the duke of York. For, take the argu­ment one way, and it overturns both the title of New-York and New-Hampshire also, leaving the latter in occupation and possession of the disputed premises, and that only, being intirely destitute of the fee; and the New-York claimants destitute of the least colour of title whatsoever. But, take the argument the other way, viz. Provided the fee of the lands aforesaid reverted and been revested in the crown, then the said lands at the time of first granting were crown lands the same as though the duke of York had never existed. But the truth of the matter un­doubtedly is this, the under proprietors all except William Penn, who had the several countries par­celled out to them by the duke of York, which was contained in his grant; surrendered their charters to the crown, whereby New-York and New-Jersey, became royal governments: This then being the state of the case, the lands in dispute became crown lands, and the governor of New-Hampshire, as well as New-York crown officers, or king's agents, and it is of no consequence to the king which of his governors grants his land, if so be they be granted to and settled by loyal and industrious subjects, thereby adding to the revenue of the crown and en­larging and strengthening the kingdom. This be­ing presupposed, and admit for supposition only, that the governor of New-Hampshire exceeded his proper limits in granting crown lands, must the grantees who have settled those lands, paid one of the crown officers for granting the same, and ex­pended their ALL, in settling and cultivating his [Page 94]majesty's wilderness land, and who are truly loyal subjects, be turned off the said land by thousands, and reduced to starving poverty, together with their numerous families, because one of the crown officers either ignorantly or designingly imposed upon the people by granting crown lands over his bounds? This would be extreme wrong, the more so as it can­not be supposed that the subjects are capable judges of the jurisdiction of governments, and consequent­ly there should be the greatest care taken to guard the subject from injury in all cases of this nature; the truth of which will more fully appear by the following considerations, viz. That notwithstand­ing the supposed error in granting the said lands, yet the great end of the crown in granting of it is compleatly answered; and provided the subjects i. e. the settlers are quieted in the fee and possession of the said lands, they will not be injured, so that upon this hypothesis, neither king nor subject would sustain damage: Indeed no person in the realm could have just cause of complaint. True, the re­spective governors of New-York may insinuate, that upon this state of the case, the governor of New-Hampshire has cheated them out of their fees for granting the said lands—though it is evident, if crown officers are faithful to the king and subjects, they could take no more money for granting crown lands, than a reasonable compensation for their trou­ble, and the other governor's being supposed to grant the lands, saves the said governor of New-York the trouble; so that the argument is brought to this single point only at last, that upon supposition the governor of New-Hampshire exceeded his proper [Page 95]limits in granting those lands, yet neither king nor subjects are injured, (provided the claimants under New-Hampshire hold the fee of the said land as a­bove) except the governors of New-York, and if they be supposed to be honest men, the trouble of grant­ing the land would be equal to their fees had they granted it; so that they have not been injured a whit more in this case, than they be supposed to have injured the subjects by taking exorbitant fees for granting the same lands; which to them is no injury at all, but a providential check to the exer­cise of their avarice. So that the respective gover­nors of New-York, in an equitable sense, are no loos­ers in this affair; or at most the privileges would be so very inconsiderable as to make it meer trifling to mention it, especially when set in competition with the shocking and universal destruction that would overspread a large country of his majesty's good subjects, provided they be dispossessed of the lands aforesaid. This seems to be the genuine sequel of the argument, even upon the Yorker's own stating it.

SECTION, II.

IT is not conceeded to on the part of the claimants under New-Hampshire, that the governor did in fact exceed his proper limits in granting those lands, the contrary will abundantly appear from the fol­lowing considerations, viz. Before and at the time the said governor of New-Hampshire granted those lands they were reputed to be within his jurisdicti­on, this was the opinion of both learned and un­learned, the wise as well as simple, thus is was uni­versally [Page 96]planed in all ancient and modern maps down to the year 1764, when, by royal determination, the jurisdiction of New-York, was extended over this dis­puted district of land. But the general opinion be­fore this royal adjudication was, that the province of New-York extended its jurisdiction but twenty miles to the eastward from Hudson's-river, so general was this opinion, that the best maps of the two re­spective provinces, and the history of New-Hamp­shire adopted it as settled; it is of very great weight in the question to shew how universal this maxim was, and that the unprejudiced and accurate geo­grapher Mr. Mitchel, in his map composed so late as the year 1755, which with great propriety and certainty ascertains the same limits, this map has the more authority as it was according to the certificate of Mr. Pownal, secretary to the board of trade, and was undertaken with the approbation and at the re­quest of the lords commissioners for trade and plan­tation, and is chiefly composed from draughts, charts, and actual serveys of different parts of his majesty's colonies and plantions in America, great part of which have been since taken by their lord­ships orders and transmitted to the office of the go­vernors of said colonies. This twenty mile line was so far from being deemed unfavorable to New-York, that we find the commissioners from that province so late as the year 1767, made an offer to those of the Massachusett-Bay to let a line at twenty miles distance east of Hudson's-river be the division be­tween their respective provinces, which the latter commissioners would not then agree to it, being thought by them too much in favor of New-York, [Page 97]so little it seems did New-York commissioners con­ceive their claim as far as Connecticut river could be supported.

THOUGH it is true in the year 1771 the province of New-York b [...] public act of their general assem­bly, did annex all that part of the province of the Massachusetts-Bay, to the westward from Connecticut-river, to their county of Albany; and it is likewise true that in the year 1773, the governors of the re­spective provinces met at Hartsord, in Connecticut, and came to a mutual agreement to settle that line at twenty miles distance eastward from Hudson's-river, which was the hypothesis of that settlement, which hath since been ratified by his majesty.

THE report of the lords commissioners for planta­tion affairs in 1753, states the following facts, from which is necessarily inferred that New-Hampshire ex­tended its jurisdiction to the westward of Connecticut-river,—"There are, says their lordships, about 60,000 acres of land situate on the west side of Connec­ticut-river, which were purchased by private persons from Connecticut, to whom the land had been laid out, by the government of the Massachusetts-Bay as an equivalent for two or three townships which the latter purchased from the former, this tract of land by the determination of the boundary line be­tween the provinces of New-Hampshire and the Mas­sachusetts-Bay in 1739 is become a part of New-Hampshire."—Thus we have their lordships sen­timents that the jurisdiction of New-Hampshire ex­tended over part of the very lands in contest, west­ward of Connecticut-river, as long ago as the year 1739, at which time New-York never dreamed of [Page 98]extending their claim to Connecticut-river.—There is another glaring and indisputable evidence of the former western extent of New-Hampshire, viz. Re­lative to sort Dummer which was built by the Bay province in 1724, and garrisoned at their expence a great number of years; but upon its being excluded from their jurisdiction by the settlement of the juris­dictional line, between them and New-Hampshire in 1739, the Bay province represented to the govern­ment at home, that the said district of land and fort Dummer, having been determined to be the property of New-Hampshire, they were no longer obliged to garrison and maintain it, and praying, that as it was necessary to the defence of the country, that New-Hampshire might be directed to support it. In con­sequence of which, an order passed the king and council in 1744, that the governor and commander in chief of New-Hampshire, should forthwith move the assembly, in his majesty's name, to make a pro­per provision for that service; and at the same time informing them that in case they refused to comply with so reasonable and necessary a proposal, his ma­jesty would find himself under a necessity of restor­ing that fort, with a proper district of land contigu­ous thereto, to the province of the Massachusetts-Bay, who cannot with justice be required to main­tain a fort no longer within their boundary. In consequence of this, New-Hampshire, did maintain this fort, and paid a demand of arrears for its main­tainance, to the Massachusetts-Bay. In the mean time New-York was never a competitor for the bur­then, willing as she is to enjoy the advantage of granting and engrossing the said lands.

[Page 99] THIS being the case, the government of New-Hampshire by the royal decree, was obliged to main­tain fort Dummer, and it being on the west side of Connecticut-river, and on this very identical district of land now in dispute, can that government be justly charged with granting lands in the province of New-York, when but a little before his majesty in council had adjudged the same lands to be in the said govern­ment of New Hampshire and ordered them to de­fend it, as by maintaining fort Dummer, &c. Sure­ly at that time New Hampshire did extend its juris­diction westward of Connecticut-river; otherwise the king had ordered the government of New-York to have maintained fort Dummer. Nothing can be more flagrantly evident than, that the government of New-Hampshire had a right to grant crown lands where the crown compelled them to defend. From hence it appears, that the government of New-Hampshire had a legal right to grant the lands now in dispute, and that, that government and his ma­jesty's good subjects, the grantees of and settlers on the said lands, acted upon honest and honorable principles, in granting, purchasing & settling the same, and on the other hand it appears, that the government of New-York in re-granting the same land, acted quite the reverse; and the more unpardonably so, as they granted great part of it in open defiance to his ma­jesty's authority manifested unto them by his ex­press prohibition, dated the 24th day of July 1767.

FROM what has been already elucidated it appears, that the administration of Great-Britain had adjudg­ed in 1739 and confirmed in 1755, that the govern­ment of New-Hampshire extended westward of Con­necticut-river, [Page 100]and that this was the general sense of the nation (till ascertained as aforesaid) is real mat­ter of fact.—True no determination of his majesty or reports of the lords of trade had before particu­larized how far the government of New-Hampshire should extend west of Connecticut-river: but such determinations of their's mightily strengthened the common opinion, nay, fully confirmed it, that that government extended westward to a twenty miles distance east from Hudson's river. This was the o­pinion both of king and subjects at the time the go­vernment of New-Hampshire granted those lands; and adventurers could not conceive of any interme­diate boundary in one place more than another, be­tween Connecticut-river and the twenty mile limit a­foresaid; nor had they any apprehension that the government of New-Hampshire would extend to the westward of that limit. This twenty mile line took universal and deep impression on the minds of geo­graphers, and was the understanding of the British empire, and was thus portrayed in all former maps. The certainty of this general opinion may be fur­ther illustrated from the consideration that none of the British subjects applied to the government of New-York for grants of those lands, till after the alteration of jurisdiction in 1764, except it be, as is pretended by the New-York scriblers, that their government extended patents from within the said twenty mile line across the same, and on some part of the premis­es in dispute, many years before the government of New-Hampshire granted those lands—which will be hereafter considered: But, would further add, it is matter of dispute whether the administration at home [Page 101]would recognize those patents granted by the go­vernment of New-York, on the premises aforesaid; though antecedent to those granted by New-Hamp­shire, inasmuch as the royal adjudication in 1764, could not antecedently impower the government of York York to grant them lands, which by royal ad­judication of the line of jurisdiction between New-Hampshire and Massachusetts-Bay, fell within the go­vernment of New-Hampshire in 1739, as aforesaid. However, for argument only, we will suppose the governments of New-Hampshire and New York had each of them equal authority to grant those lands—then on this stating the case, prior granting would of consequence be priority of title. The first con­veyance, upon this hypothesis, being good and va­lid both in law and equity, must necessarily defeat any subsequent grant from the crown or its represen­tatives, being as authentic, to all intents and pur­poses, as any conveyance of the fee of land from the crown can possibly be.—Thus it appears upon this most favorable concession to those on the part of New-York, that the argument preponderates in favor of the claimants under New-Hampshire, as their grants are prior to those of New-York, (except in the instances of the old parents, yet to be consider­ed.)

FURTHERMORE, it appears by the express words of the New-Hampshire grants, that the grantees were not only entitled to the fee of the lands therein dis­cribed, but also to all the enfranchisements, and each and every of the privileges and immunities that by law his majesty's subjects in the province of New-Hampshire enjoy; so that at the same time the gran­tees [Page 102]were vested with the fee of the land, they were enfranchised with, and entitled to all the privileges and immunities contained in their charters; as the holding of fairs, choosing town officers, and making and mending their own roads, &c. It is therefore humbly conceived, that provided it should be the future pleasure of his majesty, to continue the said lands in the jurisdiction of New-York, (which by the settlers aforesaid is hoped will not be the case) that the claimants and settlers under the said grants, will nevertheless have his majesty's gracious appro­bation to enjoy without let or molestation, the pri­vileges of incorporation therein contained; the gran­tees having ever considered those privileges as inse­perably connected with the grant of the fee-simple.

SECTION III.

FROM the facts and reasons that have been ad­vanced in the foregoing sections, it manifestly appears, that the title of the claimants under New-Hampshire to the lands in question is indefeasible; yet still there are sundry considerations that may serve more abundantly to confirm and establish this title beyond hesitation. As,

FIRSTLY, The far greast part of the extent of jurisdiction of the province of New-York, and great part of New-Hampshire, depended entirely on his majesty's pleasure, being wholly in the arbitration of the crown, to be either curtailed or extended. The real grant on which the original circumference of the government of New-Hampshire founded, ex­tended but sixty miles from the sea into the country, [Page 103]to the westward, terminating about twenty miles cast of Connecticut-river. This government was af­terwards enlarged by his majesty's commission to Benning Wentworth, Esq governor of that province, directing it to extend to the westward until it should meet with his majesty's other governments. Which clause of western extention in the said commission, as well as the royal adjudication of the boundary line between this government and the Massachusetts-Bay in 1739, and report of the lords of trade in 1755, and many other arguments mentioned in this and the foregoing sections, all on the part of New-Hamp­shire, amount to sufficient evidence, that their go­vernment extended so far west as twenty miles east of Hudson's [...]er. And with respect to the province of New-York, its original northen circumference ter­minated south of the city of Albany, and afterwards, as plantations are extended northerly, either on pa­tents procured immediately from the crown or go­vernment, or meer settlements on extra-provincial lands, commissions from the king, to the respective governors were enlarged, as in the example follow­ing, viz. A. M. Esq captain general, governor and commander in chief in and over the province of New-York, (then follows the enlargement,) and the terri­tories depending thereon in America.—These terri­tories are that extension of jurisdiction beyond their first circumscribed limits, terminating south of Alba­ny, called the province. This territorial extension of jurisdiction is altogether in the arbitration of the crown to curtail or extend as before represented. This being the case, the respective governors can no other way be judges of the extent of their jurisdicti­on, [Page 104]but by directions given them in their commis­sions, together with his majesty's express proclama­tions, and public determinations relative thereto, as in the instance of the royal adjudication in 1764; a publication of which, by his majesty's order, gave his subjects to understand, that it was his pleasure that the territorial jurisdiction of New-York, should extend to the west banks of Connecticut-river, which includes the disputed premises within that govern­ment; before this it was impossible for the subjects to know it; if they could have understood it with­out his majesty's proclamation certifying the same, such proclamation would have been needless and impertinent. The truth of the matter is, his majesty in 1739, determined New-Hampshire government should cover the present disputed premises; he alter­ed his determination in 1764, whereby New-York extended its territories over the same land. And the king has an undoubted right to alter and regulate the jurisdiction of royal governments as may seem to him mete, so long as his royal power exists; and for the New-Yorkers to amuse people of common sense, pretending that it is the ancient and indispu­table right of the colony of New-York to extend to the west banks of Connecticut-river, as its eastern boundary, is the very height of folly. It was in the nature of things absolutely impossible his ma­jesty himself should have known that to have been the case the moment before he determined it, and equally inconsistent that the subjects should know it before his majesty proclaimed it.

FURTHERMORE, it appears by the representation which was laid before his majesty by Lieutenant go­vernor [Page 105] Colden, as an inducement to prefix the west banks of Connecticut-river, the eastern boundary of the province of New-York—That they were argu­ments of conveniency, holding up to view that it would be greatly to the advantage of the inhabitants on the New-Hampshire grants, to be under the juris­diction of New-York; which arguments are incom­patible with the idea of antecedent right of jurisdic­tion. Likewise, from hence we may see the incon­sistency of that government or its patentees, in founding their right in fee to the lands in contest, by virtue of the said royal adjudication of the boundary line on the west banks of Connecticut-river; inas­much as it cannot operate to their advantage ante­cedent to the date of that adjudication, and after­ward cannot be considered any thing more than a mere line of jurisdiction between the respective go­vernments.

IT should be furthermore considered, that neither governments were vested with the fee of those lands; their case in this respect, is quite the reverse of that of proprietary governments, who have a right to appropriate the soil. In royal governments, it is true, the governors have a delegated authority from his majesty to grant crown lands; and in such go­vernments it is a prerogative of the crown to alter the limits of jurisdiction; his majesty hath a right to re-annex the disputed premises to his province of New-Hampshire, (in which it formerly was, and on the faith of which the claimants under that govern­ment purchased and settled the same lands) or in­corporate it into a new government, or continue it under the present jurisdiction, as his royal wisdom [Page 106]may discern to be best for the governed: But, upon such alterations of jurisdiction, private pro­perty is never changed or subverted. For, if the property of the subject be in the arbitration of the crown, and liable to the same vicissitudes and chan­ges with jurisdiction, this would destroy the very nature of property, and would render a king abso­lute, and despotic, which is perfectly inconsistent with the constitution of the kingdom.—Therefore, to convey or alienate property, is the sacred prero­gative of the rightful OWNER.—Kings and gover­nors (in the kingdom of Great-Britain) cannot in­termeddle therewith. There is indeed as much dif­ference betwen the change of jurisdiction, and trans­fering of the property of the subject, as there is be­tween light and darkness, although since the said royal adjudication in 1764, the New-Yorkers, have endeavored to blend them together to answer sinister and lucrative purposes.—They were sensible, un­doubtedly, that such the aforesaid arguments were conclusive against their monopolizing the fee-simple of said lands; and as it is very common for people, who are upon a design of engrossing the property of their neighbour, to set up some specious pretence of right, to vindicate themselves from the imputation of dishonor and reproach; so in the present case, the New Yorkers endeavored to draw the curtain of the duke of York over their knavery, and under the feigned character of heirs, to that apostate duke, claim the lands aforesaid, and fancy themselves the owners of towns, (fields) and houses that they build­ed not.

SECTION, IV.

ALTHOUGH the arguments contained in the fore­going sections are full and conclusive, relative to the nullity and nothingness of the duke of York's grant, at least, such part thereof as concerns the present dispute; and that neither the government of New-York or its patentees gain any manner of title to the land in contest, by predicating it on the validity of that grant, yet the general assembly of the said pro­vince in their state of the rights, &c. venture the stress of their whole cause thereon, and deduce all their arguments of title to those disputed Premises therefrom: It is therefore partly out of compliment to them, as well as more fully to invlidate, and ap­parently demonstrate, to every capable judge, the utter insufficiency and desect of title to those lands, by conveyance from the government of NewYork, that the grant of the duke of York is here brought under consideration: and in order thereto, it is ne­cessary that the second grant be here inserted, which is transcribed from the New-York pamphlet Verba­tim.

It appears from the sequel of the representations, narratives and arguments contained in the New-York [Page 109]pamphlet, that the government of New-York do not pretend to any conveyance of the fee of the lands in contest from the duke of York. But their grand hypothesis is, that the jurisdiction of their go­vernment from the first establishment, was predica­ted on, and bounded by the descriptive limits of the said grant; and consequently, that the disputed Pre­mises was never in the government of New-Hamp­shire; and, that that government never was vested with authority to grant those lands, and also conse­quently, that the grants by them made, are in their own nature void. This is the sum of the New-York arguments relative to their title to those lands. Here

FIRST, it is necessary the descriptive Limits of the above rehearsed Charter be brought under Consider­ation; which includes the countries of St. Croix, adjoining New-Scotland, Pemaquid, the river Kene­beque, and the islands known by the names of Mar­tin's Vineyard, Nantucket, &c. All these countries lying east of Connecticut-river, and within the actual jurisdiction of the provinces of the Massachusetts Bay, New-Hampshire, &c. and at present not contended for on the Part of New-York. Their general assem­bly, in the "state of the right." &c. had done well to have informed the public, whether their "anci­ent and indisputable right" of jurisdiction extended to every part of the descriptive limits of the grants aforesaid, and if not, to which part it was circum­scribed; and when done, and by what authority; whether their governors commissions, at any time, particularized and determined to what part of the limits of the said duke's grant their jurisdiction should extend, more than another, or to the whole; [Page 110]or, whether any royal edict or proclamation, had ever thus given them such predicated limits of juris­diction: this is absolutely necessary for them to do, in support of their title to the lands in question. And furthermore, it is requisite for them to demon­strate that those lands were actually contained in such their former limits of jurisdiction: but, if the government of New-York from royal determination, cannot extend jurisdiction to any one part of the descriptive limits of the grant aforesaid, more than to another; then, on this hypothesis, their jurisdicti­on includes the whole limits contained in the grant, or none at all; that it includes the whole, will not be pretended, and that any party, as predicated on them limits, cannot be made to appear: but on the contrary, it appears his majesty and council had no reference to any part of the limits of this grant, in determining the boundaries of the jurisdiction of New-York in 1764, as may appear from the royal order itself, an extract of which is as follows: ‘His majesty with the advice of his privy council, doth order and declare, That the west banks of the ri­ver Connecticut, from whence it enters the pro­vince of the Massachusetts-Bay, as far north as the forty-fifth degree of northern latitude, to be the boundary between the said two provinces’—that parrallel of latitude is also established it's north boun­dary. The source of Connecticut-river is supposed to be something to the northward of latitude forty-five, and comes much from the north-east, a consi­derable distance after it passes that latitude; but it is notorious, that the source of Hudson's river is far south of it; so that by comparing the descriptive li­mits [Page 111]of the duke of York's grant, with those express­ed in the royal order, they will be found to be ma­terially different. The limit of that part of the duke's grant which respects the present arguments, is in the words following: ‘Together also with the said river called Hudson's river, and all the lands from the west side of Connecticut-river to the east side of Delaware-bay;’ which limit in any possi­ble construction of it, can include but part of the disputed premises, (which said premises extend and are bounded on the forty-fifth degree of north lati­tude,) as will more fully appear in a further discus­sion of that line. But,

FIRST, it is manifest that the king and privy council, in determining the extent of the jurisdiction of the province of New-York, did not proceed upon the idea of that government's having any antecedent right of jurisdiction to those lands. Had that been the case, the royal order had been predicated on the boundary lines of the duke's grant afaresaid, and could not have comprehended any more land than ‘from the west side of Connecticut-river to the east side of Delaware-bay;’ and these bounds are so loose, vague, and indeterminate, that it is altogether impossible to found a line of jurisdiction thereon, as will more abundantly appear by the following ob­servations on the descriptive limits thereof, which may be seen at large in the fore part of this section. Therefore, such part only as is necessary for the con­sideration of the indeterminate bounds before spoken of, is here quoted; which, after describing the situ­ation of Long-Island, and that it abuts upon the main land ‘between the two rivers there called or [Page 112]known by the several names of Connecticut and Hudson's river,’ begins the description under con­sideration, ‘together with the said river called Hud­son's river.’ Observe, that as the description of this river is not immediately connected with any foregoing or following discriptions in said grant; nothing more can possibly be included in it, but a discription of the river only, exclusive of one foot of land on either side. The second discription ‘and all the land from the west side of Connecticut-river to the east side of Delaware-bay.’ The best ma­thematition on earth cannot ascertain these limits, except upon arbitrary principles, as there can be no prefixed place on Connecticut-river where to erect the first bounds; and as to any particular place on the "east side of Delaware-bay," where to erect a se­cond, is altogether undetermined in this discription: But, inasmuch as it includes all the land from the west side of Connecticut-river, &c. there is a little better foundation to establish the first bounds than the second. It seems in order to include all as afore­said, it would be necessary to extend either to the head of the river, or to the most northerly extention of the whole stream, to make the first bounds; and provided this imaginary bounds should extend north of the forty-fifth degree of northern latitude, it would so far exceed the settlement of the line in 1764. Be this as it will, the most northerly part of the river, which would most likely be the head, would be the most favourable on the part of New-York, for to esta­blish a first bounds, and from thence to extend a straight line to some place on the east side of Dela­ware-bay; this is something of a natural constructi­on, [Page 113]on the indeterminate descriptive limits aforesaid, without exploring Connecticut-river, which in this case is necessary. And, first, in tracing said river to its source, it is found towards it's extremity, to come much out of the north-east. This being the case, a straight line from its head to Delaware-bay, would cross said river and include a large tract of land on the east side, and perhaps cross the river sundry times; the consequences may be drawn thus, that where the line may be supposed to cross the last time ought to be the first real north boundary, of the "ancient and indisputable" limit of jurisdiction of New-York. For, if the bounds at the head of the river before spoken of, be so established, it would include considerable land on the east side of the ri­ver, within the old boundary of New-York, which is contrary to any idea to be gained from the discrip­tive limit aforesaid, viz. ‘and all the land from the west side of Connecticut-river, &c.’ Still it may be queried whether there may not be another pro­posed first boundary better purporting with the de­scription of ‘and all the land from the west side of Connecticut-river to the east side of Delaware-bay,’ between the head of the river, and the place where the imaginary line was supposed to pass? To this it may be answered, that a place between these two, so far up the river as in tracing a straight line from thence, to Delaware-bay, would not cross the river, may better agree with the above description: Still, from none of these imagined lines, from the differ­ent imagined bounds, or from any other projected, possible, first bounds, can such a straight line be as­certained, till the place for the south-western boun­dary [Page 114]on the "east side of Delaware-bay" be establish­ed? And the vagueness of the descriptive limit is so great, that it cannot be determined whether that bounds shall be at the northern extremity of the east side of Delaware-bay, or at the southern, where it communicates with the main ocean, or at any other intermediate place between these two: so, that from the uncertainty of the second bounds, it is impossi­ble to establish the first, so as exactly to include "all the land from the west side of the said river to the east side of said bay," and no more. And,

THUS it is demonstrated from the vagueness, un­certainty and obsoleteness of the discriptive limits of the grant to the duke of York, before quoted at large; that it is in the nature of things absolutely impossible to ascertain it. From hence follows a second necessary inference, viz. That it is equally impossible and contradictory, that governmental ju­risdiction should be predicated thereon; for an ideal uncertain jurisdiction, in its own nature incapable to be determined, is in reali­ty none at all. And from hence follows a third inference which deter­mines the sequel of the argument on the subject of property, concerning the lands in question, to be in favour of the claimants under New-Hampshire: For, it is in the last place equally contradictory and im­possible, as in the case of the absurdity of ascertain­ing the limits of the pretended "ancient" jurisdic­tion of New-York, predicating it on vague and un­determinate boundaries, that, that government should predicate their right to the fee of lands, by them thus unascertainable; for as uncertainty and natural im­possibility of a jurisdiction's being rendered determi­nate [Page 115]makes it in reality to be none at all; so the idea of property, predicated thereon is equally imperti­nent. True it is, by the royal determination in 1764, the east line of New-York extended to the west banks of Connecticut-river. Which may be foundation for conjecture, that that limit might have reference to a description in the duke's grant aforesaid, "and all the lands from the west side of Connecticut-river," &c. Yet when the representation made by lieut. governor Colden, to his majesty in council, as men­tioned in this pamphlet, under the head of the nar­rative, &c. comes to be considered, it will reflect light on this point. The arguments made use of in the said representation were those of conveniency and advantage to the settlers on those lands to be in the government of New-York: and, that the west banks of Connecticut-river was a good and certain boundary," &c. These were undoubtedly the pre­ponderating motives of determining the west banks of Connecticut-river to be the east boundary of New-York, and such arguments are utterly inconsistant with the notion of an "ancient indisputable right" of jurisdiction.

THERE is still another consideration which may be of moment in the observation of this, so trumpt up, "ANCIENT RIGHT OF JURISDICTION" of the province of New-York, to the lands in contest: If it be admitted a line should be drawn from the most northerly part of Connecticut-river to the most north­ern extremity of Delaware-bay; still, it is by no means probable such line would include more than one half (if so much) of the lands in dispute so far as may be judged from the latitude and longitude of [Page 116]the respective objects: for considering the course of Connecticut-river, which is nearly from north to south, except towards its extremity; and the sea coast, from the river's mouth, together with Dela­ware-bay, forming also an indened line, to the south of west; the land included in these limits, by a line drawn from Connecticut-river to Delaware-bay as a­foresaid, would (excepting the small promontory formed by the mouth of the bay and the ocean) lye in the figure of an obtuse angled triangle; and the course of the said line from the river to the bay, ac­cording to occular survey, would be from the north­east a southwesterly direction: which very badly comports with the present north and westerly exer­cise of jurisdiction of the government of New-York, at Crown-Point, Detroit, &c.—It may here well be observed, the settlers under New-Hampshire seem to be in a critical situation; every arbitrary measure under the present administration of the government of New-York, is excercised against them; and provided they flee to the eastward to procure inheritances, there they are fore-closed, the descriptive limits of the said ancient jurisdiction covers them, (to wit) the coun­tries of St. Croix, Pemaquid, Kenebeque, Nantucket, Martin's Vineyard, &c.—Yet there is another large un­known country to the west and northwest, which has been but partly explored; and provided these people, instead of fleeing, to the eastward, should turn their course to those countries; there, it is in­disputable but that New-York would encircle them with another odd description of domain contained in their governor's commissions, i. e. ‘ A. B. captain general governor and commander in chief in and [Page 117]over the province of New-York,’ next follows the description hinted ‘and the territories depending thereon, in America.’

FROM the foregoing descriptions of the govern­ment of New-York, it appears they lay claim to so extensive a domain three different ways, or have three different modes or modifications in comprehending and engrossing their progressive limits. As,

1stly. THE Province of New-York which falls short of and terminates considerably south of the city of Albany.

2dly. "THE territories depending thereon in America." These territories comprehending such plantations, on extra-provincial land, as are and have been carried on adjoining to the province till its territories, are at present extended to Detroit, and the neighbourhood thereof, &c.

3dly. The limits of the duke of York's grant, and inasmuch as the grantees and settlers on the lands in dispute, hold their title under New-Hampshire, and that government had for several years exercised their jurisdiction over those lands, even till 1764.—Therefore in this case the government of New-York could not extend their territorial sort of jurisdiction over the premises; for such sort of jurisdiction might be challenged on the part of New-Hampshire (if it should be admited at that time said premises were extra-provincial lands) and that with far the most propriety. Inasmuch as that government had grant­ed the land and began settlements thereon. Add to this the following clause in governor Wentworth's commission, which they viewed to be of great weight in this case, which, after describing the former li­mits [Page 118]of New-Hampshire, ‘and from thence extend­ing west till it meets with his majesty's other go­vernments.’ Add to this also, the reasons held forth in the chain of arguments, contained in the three first sections; all which were too potent for the New-York territorial sort of dominion to frus­trate. At that juncture, therefore, the lawyers, land-jobbers, politicians, &c. planed out the afore­said three modes of jurisdiction predicating it on the descriptive limits of the grant to the duke of York. And on this new modled plan breathed an air of "ANCIENT AND INDISPUTABLE RIGHT OF" jurisdic­tion, and consequently to the fee of the lands in contest.

THE first intimation that ever saluted the ears of the publick, asserting it to be the ancient right of the colony of New-York, to extend to Connecticut-river as its eastern boundary, was discoverd from a pro­clamation given under the hand of William Tryon, Esq governor of the province of New-York, &c. and dated the 11th day of December, 1771. His proclamation begins after the following manner: ‘Whereas it is the ancient and incontestble right of this colony to extend to Connecticut-river, as its eastern boundary.’

THIS was drawing a positive conclusion from fictitious, and till that time, unheard of premises; and rather influenced people in the several govern­ments, to purchase and settle under New-Hampshire, than diswade therefrom; for common fame and com­mon sense, were a barrier against the belief of this New-York doctrine, which from the time of the roy­al adjudication in 1764, was by the proclamation [Page 119]aforesaid, antidated to "ancient." That this doc­trine till then, was incontested, is thought to be true; for it had but peept to public consideration, and has ever since been contested.

SHOULD this their new hypothesis be admitted; yet, as hath been before observed, these limits could include but part of said lands, according to the best judgment that can be formed without an actual and accurate survey of the descriptive limits of said grant; which if the New-Yorkers can do and fairly demonstrate, to any able mathematicians, and com­petant and impartial judges, that they have rightly ascertained those limits, it is engaged on the part of the claimants under New-Hampshire, that they shall yield up to the land-jobbers of New-York, their lands and labours: an object which undoubtedly would be grateful and pleasing to them; and which they have many years been in pursuit of, and have hi­therto had the mortification to be baffled. It is ve­rily incumbant on the government of New-York, in order to found title to those land on this new scheme.

FIRSTLY, to ascertain the limits of their imagina­ry bounds. This the claimants under New-Hamp­shire, will expect compleated, or hear no more of those "ANCIENT AND INCONTESTIBLE" boundaries of New-York.

SECTION, V.

THE general assembly of the colony of New-York, in their state of the right of that colony, &c. page 3d, wave the right of the English by first discovery, [Page 120]as being foreign to their purpose, and that the Dutch possessions are only material to be supported; and claim no further right by way of the Dutch, but priority of possession. Yet in the same page in­form, ‘when the first war between England and Hol­land became inevitable, king Charles the second, by letters patent dated the 12th day of March 1663-4, granted to his brother the duke of York the tracts of country, which comprehend New-York. To render this gift effectual, before the war was proclaimed, a fleet and land forces were sent out to remove the Dutch and put the duke in possession.’—The circumstancies that attended the making this grant, and sending the armament to ren­der it effectual, is a sufficient reason to determine that the government at home, at that time, viewed the Dutch settlement as an intrusion, and possession (which is all they rely on) gained by trespass, in le­gal construction, is no possession at all. That the English had prior right to all the countries from for­ty to forty-eight degrees of north latitude, by virtue not only of discovery by Sebastian Cabot and others, but by being in actual possession of several parts of the premises, is matters too well known to be dis­puted.

WHETHER there was real seisin in the crown or not at the time of granting these countries, is not truly in question; since every grant so made is in­contestibly valid against the king, his heirs and suc­cessors; and the colony of New-York being entirely dependant on the crown of Great-Britain for their title; priority of charter is therefore necessary to be determined.

[Page 121] THE grant of king James the first to the council of Plymouth, bearing date at Westminster, the 13th day of November, in the eighteenth year or his reign, comprehends all the lands, islands, &c. from forty to forty-eight degrees of north latitude, through the main land from sea to sea. "On the 19th day of March 1628, the council of Plymouth under their com­mon seal, did grant to sir Henry Roswell, sir John Young, and others, their heirs and associates for ever, all that part of America, lying between the great river there, commonly called Monomack, alias Meri­mack and Charles river, within the space of three miles to the northward of the same river, called Mo­nomack, alias Merimack, or to the northward of any or every part thereof, and in length and longitude of and within all the breadth aforesaid, throughout the main lands there, from the Atlantic or western sea or ocean on the east part, to the South sea on the west part."

THIS deed of sale at the suit of the grantees, with a charter of incorporation, was granted and confirm­ed by king CHARLES the first, the 4th day of March 1629, wherein the limits are exact­ly the same with those in the Plymouth conveyance; and the proviso of CHARLES, that the actual settlement of the sub­jects of other christian states to determine the extent, the same as was the proviso in James's grant to the Plymouth company.

THIS same charter of incorporation was adjudged void in the high court of chancery of England in 1684; from which the assembly of New-York in their state, &c. page 5th, take occasion to say ‘the title of that colony now solely depends on their [Page 122]new charter of 1691.’ Nevertheless, the right of soil to all and every part of the deed of sale afore­said, remained indefeasible; for, only animadvert back to the Plymouth conveyance, and observe, that the right in fee, was by them conveyed to the gran­tees; and trace it to king CHARLES'S charter of in­corporation, which only vested the grantees with powers of government. Though it is true, this charter contains all the formality necessary in the conveyance of the fee; yet is, so far as respects the fee, no more than a duplicate of what was before granted, which neither adds nor deminisheth; and it is easy to see, that the court of chancery could not vacate or make void, at most, any thing more than those incorporate privileges; and likewise as easily discernable that nothing more was attempted. Thus the colony of the Massachusetts still hold their right in fee, by conveyance from king JAMES to the coun­cil of Plymouth, who were their grantors.

IN the next place it may be observed, that in 1691 the privileges of incorporation were restored; tho' our authors, in their state &c. endeavor to curtail the colony of the Massachusetts, by construing their last charter to extend no further west than the east limit of the colony of Connecticut. Their words are these, "these words (as far as) being in the case of the grant of the crown on the suit of the party, in legal construction, carry the Massachusetts-bay colo­ny no farther westward than till it meets the colony of Connecticut, and not to Connecticut-river, and much less to the westward of it." Be these bold assertions as they will, and provided it be here admitted, for argument sake, that the powers of jurisdiction of the [Page 123]province of the Massachusetts-bay be ever so much curtailed, yet one proposition we can verily be as­sured of viz. That it is not in the power of king or chancery to curtail or deprive them of their pro­perty.

IT is to be further observed, that however our authors may criticise upon the gramatical or legal construction of selected words or phrases; yet, a lit­tle attention to the following real facts, will clearly point out the inconsistency of such sophisms.

FIRSTLY, Connecticut charter, granted by king CHARLES the second, the 23d day of April 1662, was bounded and extended in length, by and with the Massachusetts first charter, granted by king CHARLES the first, the 4th day of March 1629, which incontestibly extended agreeable with the a­foresaid discriptive limits of the deed of sale from the council of Plymouth, to sir Henry Roswell, sir John Young, &c. and extended through the main land in longitude to the south sea on the west part.

THIS charter, as above, being nullified in the high court of chancery of England in 1684, and re­stored again in 1691, wherein the west extent of li­mit is predicated by that of Connecticut, and this west limit of Connecticut being predicated by the old charter of the Massachusetts-bay, and expresly ex­tending in longitude to the South sea on the west part, exactly extends the present charter of the Mas­sachusetts-bay, with its powers of jurisdiction to all, and every part of the limits of the old nulled char­ter. This is the natural and legal sense of the pre­sent charter of the colony of the Massachusetts-bay, predicated on undeniable facts.

[Page 124] IN the next place 'tis necessary to consider the charter of Connecticut, which our authors inform should not extend west of Connecticut-river, in the words following: ‘This being a crown grant on the suit and petition of the grantees, is to be ta­ken most beneficially for the king. The descrip­tive words, and the intention of the grant, will in legal construction be satisfied by giving the colony the same length as the Massachusetts-bay; and it is plain both from the recital and the saving clause in the Plymouth patent, on which the Mas­sachusett's title was founded, that the latter cou'd not in any sense, extend to the westward of Con­necticut-river.’ As this their assertion is founded on the hipothesis of Connecticut charter's being pre­dicated on that of the Massachusett's, and therefore the arguments before exhibited on that head, are e­qually conclusive for the establishing the western ex­tent of Connecticut, nothing more is necessary for that purpose, but a recital of the discriptive words of their charter, granted subsequent to their purchase from the council of Plymouth by king CHARLES the second, the 23d day of April, 1662, ‘bounded 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 Massa­chusetts plantation; and on the sea, and in longi­tude as the line of the Massachusetts 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.’ Thus it appears and only by the demonstrations aforesaid, but from the express words of the descriptive limits of the charter itself, [Page 125]which cannot admit of a double meaning, (curious as our authors be in the art of playing with words, they have not attempted to obviate their literal mean­ing,) that it is the unquestionable right of the colo­ny of Connecticut to extend its western boundary to the South sea on the "west part;" and in this that colony agree, who are now challenging their right in fee to those limits, and actually making plantati­on, as at Susquebannah, &c.

BY this time, undoubtedly queries will arise in the mind of the reader, what will become of the grant to the duke of York, if the Massachusett's and Connecticut colonies extend "to the South sea on the west part?" The following intelligence from our authors will intro­duce an answer to this query; who, after describing said grant further inform, in page 3d of the state, &c. That ‘a fleet and land forces were sent to re­move the Dutch, and put the duke in possession.’ Accordingly, on the 27th day of August 1664, the Dutch governor Stuyvesant, surrendered by capitula­tion, all the countries the Dutch then possessed, to king CHARLES the second; when among other terms it was stipulated, ‘that all the people shall remain free denizens, and shall enjoy their lands, houses, and goods, wheresoever they are within this country, and dispose of them as they please.’ Thus, by conquest, the king became revested with his right to the lands conquer­ed: for, as the king had antecedently disposed of the estate the crown was possessed of in these countries, to the colonies of Connecticut and the Massachusetts-bay; therefore, his right now could not extend any further than the actual conquest, which, in legal construction, must [Page 126]be satisfied with, and can extend no further than the actual possessions described in the forementioned capitulation. A further information is in page 4th, ‘To remove any doubt of the validity of the dukes title, either from the want of seisin in the crown when it originated, or on account of the interme­diate conquest by the Dutch, it was confirmed to his royal highness by further letters patent, dated the 29th day of June, 1674.’ That there was want of seisin in the crown at the time of first grant­ing, is incontestible; for, as above said, the king by antecedent grants had divested the crown of its right, and by this conquest became revested: So that from this, occasion will be taken to say, that in fact the province of New-York was originally sounded on conquest, and the limits of it, as before mentioned, circumscribed by the Dutch possessions pointed out in the terms of capitulation. Howe­ver unfavorable this conclusion may be thought on the part of New-York, yet, as the crown had prior to either of the duke's grants, disposed of its right to the Massachusetts and Connecticut colonies—if it was not thus founded on conquest, it hath no foun­dation at all; and its having any place for existence, is but an "intrusion on the rights" of those other colonies. Furthermore, it is mysterious and con­tradictory, admitting that that government was thus founded, to suppose the duke could be lord pro­prietor; inasmuch as by the conditions of capitula­tion, the fee then acquired to the crown, passed to the Dutch inhabitants, who then became English subjects.

[Page 127] THOUGH this tract of land now in contest, was contained in the original grant to the council of Plymouth, yet as they never made any conveyance of it, therefore it reverted to the crown on the surren­der of that grant, the 7th day of June, 1635. From which it may be objected, on the part of New-York, that the above conciseness in the circumscription of the boundaries of their colony is too great; for, that the grant to the duke must hold good where the crown, at the time of granting, was vested with a right to the lands granted. In answer, it has been argued in the preceeding section, that it is very un­certain whether the limits of the duke of York's grant included this tract of land, or if any, how great a part; and that the limits of said grant cou'd not be ascertained—and that governmental jurisdiction, and property cou'd not be predicated on such ob­solete and uncertain bounds. It was also demon­strated in the first section, and will be further obser­ved in this, that the duke of York's grant reverted to the crown, and that the landholders in the go­vernment of New-York hold under the crown, and that, if it did not revert to the crown, the fee is still in the duke, his heirs and assigns, and no land­holders in the government are vested with the fee of the lands they possess, &c. ^* It would be too tedi­ous as well as needless to recite the arguments that have been offered in the three first sections, which is humbly conceived are abundantly suf­ficient to answer the aforesaid objection, and fairly [Page 128]demonstrate priority of title to be in favor of New-Hampshire; to which the curteous reader is referred for a consideration.

As has been before observed, the design of the duke of York's grant was to include the Dutch pos­sessions; or in other words, that it never was valid any further than to such possession, which by con­quest, reverted to the crown, and no farther than these limits, to interfere with the charrer colonies of the Massachusetts and Connecticut. And as a twenty miles line to the eastward from Hudson's river would include the most eastern extent of the afore-menti­oned possessions, the reason why such a line was a­greed to as the boundary between the colonies of Connecticut and New-York: But, as these possessions to the northward of Connecticut, fell far short of this twenty mile line, or were so inconsiderable and un­certain as not to come within the capitulation re­serve; therefore the Massachusetts colony contended with New-York for a further western extent than twenty miles east from Hudson's river; but the rest­less government of New-York, ever uneasy within its own boundaries, presumed unrelenting, to intrude on, and contesting for the just rights of the Massa­chusetts, by extending their patents far to the east­ward of twenty miles from Hudson's river; in conse­quence of which the greatest disturbances have ari­sen between the inhabitants of the respective colo­nies, and sundry of the conflicts so severe, that hu­man blood spilt in the contest redened the hands of the intruders; but finally a boundary line was a­greed to by the respective governments in 1773, at a twenty miles distance from Hudson's river, which has since been ratified by his majesty.

[Page 129] IN the state of the right, &c. page 4th, is the most extraordinary account of alienation of property that is to be found in the annals of history. ‘The duke continued proprietor and chief governor of this province till he ascended the throne, when his right merged in the royal authority, on his abdi­cation it passed to king William, his successor, as lord proprietor and royal sovereign.’ That up­on the duke's accession to the throne his right of government merged in the royal authority will not be denied; but, that his right in fee consequently passed to king William as his successor, wants great­er proof than a bare assertion; our authors should have explained this matter; 'tis taken for granted they will not pretend that king William was heir at law to the duke's estate, and they mention no con­veyance from the duke to the king, but say the "duke's right merged in the royal authority;" to suppose it is possible that right should pass to king William, as lord proprietor, is so great an absurdity that it wants a name.

In the same page they further inform, that ‘in the duke of York's commissions to his several lieu­tenant governors Major Edmond Andross, on the first day of July 1674, and Colonel Thomas Dongan on the 30th day of September 1682, among other description of the boundaries of this province are expressly comprehended all the land from the west side of Connecticut-river to the east side of Dela­ware-bay.’ Note, those commissions were nom the duke before he ascended the throne; undoubt­edly in his commissions to his lieutenant Governors, he had reference to the limits of his grant, to deter­mine [Page 130]their boundaries: but after his abdication, and the accession of king William and queen Mary, we find a commission from their majesty's to Henry Slaughter, to be materially different. ‘King Wil­liam and queen Mary, by their commission, dated the fourth day of January, in the first year of their reign, appointed Henry Slaughter, to be governor of the province of New-York, and the territories depending thereon in America.’ The same as­sembly (stiled our authors) further inform, that ‘in all subsequent acts and commissions this colony is described by the same words, the province of New-York, and the territories depending thereon in A­merica.’ No arguments need be used to prove, for it is self-evident, their majesty's had some differ­ent idea of the province of New-York, than what had been before described by the duke's commissi­ons to his lieutenant governors, and a little attention to the original state of that government, will explain that difference. Our authors further inform, page 17th, ‘The Ransselaer family are not indebted to the government of New-York for their estate, they continue to enjoy it by an act of justice and not of favor; it was originally a Dutch colony of it­self, granted to their ancestors by the Dutch West-India company, who held it as a part of New-Ne­therlands, under the states general. On the sur­render in 1664, their rights were secured to them in common with the rest of the inhabitants, by the before-mentioned article of capitulation grant­ed on the surrender of the country, by Col. Ni­chols, the commander in chief under the crown, and lieut, governor under the duke: the faith of [Page 131]government was pledged for their security, and their estates were confirmed under the seal of this colony in the year 1685, not by meer act of the provincial governor and council, but by an ex­press order of king James the second.’ They fur­ther inform page 5th, ‘so long ago as the year 1685, king James the second, by letters patent under that seal granted to the Ranssclaer family the ma­nor Renselaerwyck, extended from Hudson's river both on the east and west sides twenty-four miles.’ This manor includes the city of Albany, and extends near twenty miles to the southward of it; south of which terminates the province of New-York, ex­pressed in their governor's commissions, so that this manor is included in their second description of do­main, viz. the territories depending thereon, and ex­clusive of this clause in the commissions, antecedent to the fore-mentioned determination in 1764, the governors of New-York cou'd not exercise jurisdicti­on even in the manor of Renselaerwyck, and moth less to the northward of it, as settlements which lay contiguous to those limits seemed necessarily to fall under the jurisdiction of that government. Thus their territorial sort of dominion hath been extended, without any prescription or limitation, agreeable to the observation of their celebrated judge Smith, who, speaking of that government, said ‘it might well be accounted unlimitted.’

IT may be further offered in objection on the part of New-York, that allowing the foregoing arguments relative to the territories, and that Renselaerwyck was, before the aera of the aforesaid determination, in fact annexed to the government by the territorial [Page 132]clause in the governor's commissions; yet, neverthe­less the duke's grant must be valid to the northward of that manor, to all the lands it originally covered. This cannot operate in favor of New-York, for, in addition to what has been before argued to this pur­pose, the reader is desired to observe, that king James the second, who was this same duke of York, abdi­cated the throne in 1688, and his estate reverted to the crown of England, and this grant became vested in the crown, the same as though the duke or his grant had never had an existance.—Nor have any of their governor's commissions, from Henry Slaugh­ter, the first governor appointed by king William and queen Mary, down to this present aera, ever been predicated on, or had the least reference to the limits of that grant.

SECTION VI.

THE government of New-York make the greatest outcry against her sister colonies, taxing them with intrusion, violence and encroachment; and at the same time, are flagrantly more guilty of the same avaricious, unjust, and hostile wickedness than all the rest of the English America. Their capricious land jobbers have a surprising faculty in carrying their points; at the same time they are encroaching upon their neighbours, provided they meet with op­position, they will cry out in the most exagerating exclamations, violence, riot, treason, &c. and at the same time, not hesitate to trample upon his majesty's authority, (the particulars of which may be seen in the proceeding narrative.) They are great advocates [Page 133]for law, order, and good government; these are their borns of iron, and with them do they push the poor and needy, when they get them into their net. Their way is as the way of a serpent upon a rock, and it is diffi­cult to trace their footsteps: They complain of the lawless, factious, and riotous conduct of the settlers under New-Hampshire; yet know, that they them­selves are the moving cause of all the disturbances they complain of. It is incredible to suppose a collecti­on of farmers exposed to the perpetual fatigues and laborious toile of cultivating a wilderness country, should under a just administration of law, become "a confederacy of insurgents." Was it only that natural presumption being so much in favor of those inhabitants, it is humbly conceived, that all wise and unprejudiced persons will, at least suspend their judgments concerning them, till the New-Yorkers can clearly evince, that these people are in reality, without cause, tumultuous, disorderly, &c. And, inasmuch as the facts of this controversy is so fully set forth in this treatise, the reader is thereto refer­red for a clearer exhibition.

OUR authors' in order to maintain their claim to the lands in contest, and if possible, to include it within one of the descriptive limits of the grant to duke of York, tell us many strange things about the colonies of Connecticut and the Massachusetts: that Connecticut "in legal construction" should not have extended to the westward of Connecticut-river; and that their settlements west of that river were an in­trusion on the right of the colony of New-York; yet, nevertheless for peace sake, and rather than contest with "a powerful neighbour," they settled with [Page 134]that colony at twenty miles distance from Hudson's river.

THEY further inform, that ‘the Massachusetts claim stands by no means in so respectable a light as that of Connecticut,’ and in legal construction, should extend ‘no further westward than till it meets the colony of Connecticut, and not to Con­necticut-river, and much less to the westward of it.’ Our authors being men of great learning and saga­city, soon extended their ancient right of jurisdiction over such part of the Massachusetts colony as lay to the westward from Connecticut-river, and this their scheme in stopping the western extension of that colony where it meets Connecticut, may be reckoned as one among the greatest of their political atchieve­ments. "And it is worthy a remark," that had the Massachusetts colony extended west to the South sea, it could not have met Connecticut, but must have extended parallel with it, in the same direc­tion.

To give this pleasing scheme some kind of co­lour, they argue the nullity of the Massachusetts first charter, and introduce the duke of York's grant as the oldest title, page 5th, ‘the Massachtsetts char­ter was vacated, and the title of that colony now solely depends on their charter of 1691.’

YET they allow, that that colony obtained the right of soil from the council of Plymouth, and that the charter of king Charles dated the 4th day of March 1628-9, ^* vested them with powers of go­vernment, (it's needless to animadvert on these [Page 135]strange accounts) however, after they have charmed their imaginations with the fruitless idea of extend­ing their ancient tight to all that part of the Bay province west of Connecticut-river, they complain bitterly of the encroachments of the Massachusetts, page 8th. ‘Under circumstances so favorable to the rights of this colony, we have great reason to complain of the unwarrantable encroachments under the authority of the government of the Mas­sachusetts-bay, by which a valuable tract extend­ing from Connecticut-river, within twenty miles of Hudson's river, has been wrested from us.’

‘THEIR conduct seems the more inexcusable, as they must have known that such encroachments were not only disrespectful to his majesty's autho­rity, and big with great mischiefs and disorders, but were highly injurious to private property, great part of these lands having anciently been granted to his majesty's subjects under the great seal of this colony.’

THEN they proceed to recite their old grants, which they tell us ‘cover the country the whole breadth of the Massachusett's claim:’ The manor of Ren­selacrwyck, granted in 1685, and extending twenty-four miles each side from Hudson's river; and West­onhook, in 1705, which extends about thirty miles from Hudson's river; and Hoosick, in 1685, which extends about thirty miles from the river. It seems to have been a political and universal principle with the government of New-York, to begin their patents within the twenty mile line, and extend them east­ward of it, that by this means they might have op­portunity to encroach on, and jockey their neigh­bouring [Page 136]colonies more or less, out of their lands, as subsequent policy, intriegue and power, would ren­practicable.

THAT government, thus extended their patent into Connecticut, one in particular, into the township of Salisbury; and it has ever been their practice to wrangle till they find by experience, that neither by sophistry, law, or hostility, they can maintain their exorbitant claims, and then capitulate on as good terms as they can; and conclude with branding their competitors with dishonesty, encroachment and many hard names, and don't scruple to impeach their governmental authority, (as in the case just re­cited of the Massachusetts-bay) with being disrespect­ful to his majesty's authority, and guilty of great mischiefs and disorders; although the authority of their own government, by their unjust, avaricious encroachments on the Massachusetts even to Conuec­ticut-river, laid the foundation of those disorders, and they might have added blood-shed; yet their assembly have the impudence to palm it all upon the authority of the Massachusetts.

THE claimants under NewHampshire are so happy as to be almost exempted from any New-York claims, by patents from that government prior to their's; the aforesaid Hoosick and Wallumscock patents being the only ones of this nature, the former includes a­bout one quarter of the township of Pownal, on which part were about four settlers, when it was granted by New-Hampshire. This township is bounded soucherly by the north line of the Massa­chusetts-bay, and extends west as far as the Connecti­cut and Massachusetts colonies; the latter, i. e. Wal­lumscock [Page 137]patent, was granted under the common seal of the province of New-York, the 15th day of June 1739. This patent is said to interfere with the township of Bennington, and it is matter of dispute, whether in its first location, it included more than about thirty or forty acres within that town, tho' it seems the patent by its descriptive limits, extends further into the town, and the patentees produce a map corresponding with those limits. This monu­ment is well known by the Bennington people, and is on the western edge of the town; and there has never been a discovery of any lines of the survey of that location to the eastward of this monument. The many circumstances of this nature, amount to almost a certainty, that the patentees never made any actual location further interfering with Bennington, than as aforesaid; notwithstanding, as they have planned their patent, it includes about one eighth part of the town; which lands are exceeding good in nature, and are settled wholly underthe New-Hampshire title, by industrious farmers, who form a wilderness state, have cultivated and brought the most of it under good improvements, with many valuable houses, barns and orchards; some of them annually mowing at least eighty tons of hay, and raise other produce of the country in proportion. Not the least improvements of posses­sions were ever made in that town, except by these inhabitants; neither had they the least knowledge of a pretence of any New-York patents extending there till several years after they had settled the land. As has been before observed, there were about four settlers on that part of Hoosick patent, included in [Page 138]the township of Pownal, when it was granted; and if the author has a right information, there has not been any more settlements made under the New-York title since, though there had sundry families settled on the premises included as aforesaid, under the New-Hampshire title.

As the state and circumstances of such part of the townships aforesaid as are included in the old patents, are materially different in many respects, from the circumstances of the New-Hampshire grants in general; it will therefore be necessary that this matter have a particular consideration; and that none of the aforesaid arguments be considered in this case but what are truely applicable; and in this review of the case, it will be admitted, that the old Wal­lumscock patent includes such part of Bennington as the plan the patentees exhibit doth contain.

IT is taken for granted that the royal determina­tion of the boundary line in 1764 could not extend the government of New-York antecedent to the date of that order, which was a manifestation of royal power, and which was the sole cause of that extenti­on; therefore, at the time the government of New-York granted the forementioned old patents, they could have no greater authority for so doing than what they were then in fact possessed of: It remains therefore to be considered, whether the patents from the government of New-York are valid or not, so far as they interfere with the townships of Benning­ton and Pownal. And firstly, it has been proved that the province of New-York as described in their governor's commissions, doth not extend so far north as the city of Albany; therefore the northern [Page 139]tracts of country which these patents of Hoosick and Wallumscock cover, must be considered as belonging to their second sort of domain, (to wit) the territo­ries. It has also been shewn, that these territories are not circumscribed to any particular limity, but that they were originally meant to include some an­cient grants that were independent of the province and adjoining settlements, on extra-provincial lands: probably that government may have authority to grant land to the west and north-west, where it is indisputably unappropriated, and where the claim of none other government could interfere: but it will be insisted upon, on the part of the New-Hamp­shire settlers, which are included in the aforesaid old patents, that the government of New-York had no right to extend any of their patents to the castward of a line equivalent to that which consticutes the bounds between New-York and the colony of Con­necticut and Massachusetts. This limit was ever thought by the people in general of the colony of New-York, as well as those of the adjacent colonies, to be the eastern boundary of New-York, until the aera of the late determination, which extended it to the river Connecticut: and labouring men that sup­port the world of mankind, are obliged to form their judgments of the jurisdiction of governments by the common received opinions of mankind they are conversant with; and even admitting they make an erroneous judgment, yet, in the present case, as the lands were of but little value, exclusive of their toil and cultivation; and as the farmers in reality uphold the state, it is therefore not only incumbent on the laws, but on the policy of the state to defend them [Page 140]in cases of this nature—it must be admitted that where the limits of governments are clearly ascer­tained and notoriously known, that a farmer tres­passing in this manner on another's property, must bear the loss. But, provided a country of people be generally under a deception as to matters of ju­risdiction, and purchase land and make great im­provements, and all on a mistaken footing; men in such circumstances should be considered in the most favorable light. For, as not only individuals, but the country about them were in the same manner deceived, and therefore, at the time of purchasing and settlement, they were utterly destitute of the means of knowledge; yet, however, it is not con­ceded to, that those farmers on whose account the present arguments are exhibitted, are under a de­ception about this matter; for of all sorts of govern­mental jurisdiction, the New-York territorial was the weakest, loosest and most vague; it was rather oc­casional and political, than positive; and in its own nature almost or quite incapable of being extended faster than settlements were actually carried on, or at most the lands exposed to this territorial jurisdic­tion, should not be patented faster than his majesty's subjects are disposed forthwith to settle. The ne­cessity of granting so fast may be pleaded on account of order—the policy of government may demand it; otherwise an occasional jurisdiction would be al­together unable to abilitate the government to make conveyance of the right in fee; although it is indis­putable that such a jurisdiction in matters of meer government, is to all intents and purposes, equal to positive jurisdiction; but with respect to having a [Page 141]power to convey the fee of lands, is matter of doubt: But thus much with propriety may be inferred, that a title so weak and impotent should not claim su­periority over the least conception of title whate­ver; a meer possession is of itself abundantly suffi­cient to maintain the right in the possessor, and on a judicious trial at common law, (could such an one be had) would be adjudged paramount to it.

THERE is another consideration that must totally extinguish and obliterate all possible remaining idea of right, that the patentees of Wallumscock may be supposed to have the said tract of land included in the limits of the township of Bennington. Only ad­vert to the date of that patent, which is on the 51th day of June 1739, and compare it with the time of the commencement of the settlement of Bennington, which was in the spring of the year 1760, and there will be found to be twenty-one years from the date of this patent, to the beginning of the settlement under New-Hampshire;—in all this time there was not the least settlement or possession made in the pre­mises; although the express condition of the patent was, that it should be settled in three years from the time of granting. Possibly in all that time the pa­tentees might have got some Dutch tenants on some western part of the patent, which, with the govern­ment of New-York, may be denominated a fulfil­ment of the condition of settlement; many large tracts having been patented, some since and others longer ago than Wallumscock, which are yet mostly a howling wilderness. This practice of the govern­ment of New-York in extending their patents to the eastward of a twenty mile line from Hudson's river, [Page 142]hath ever been considered as a disingenious and de­signing policy in that government; thereby to lay a foundation for intruding on the rights of their neighbouring colonies; and has been attended with many disagreeable consequences, as has been before observed. And as that government have given up their exorbitant claims where they interfered with the right of the Massachusetts, it would undoubtedly be their wisest way to do the same with respect to such claims as interfere with the right granted un­der the great seal of the province of New-Hampshire; and instead of treating the people that have settled those lands under that title, as rioters and felons; to exercise that justice and humanity towards them, which becometh governors to the governed.

IT remains still, that there be a summary view exhibitted, relative to the rule of right which should take place with respect to the settlers under each government, that are settled on such part of the fore­mentioned patents as are included in the townships of Bennington and Pownal. And although superio­rity of title is in favor of those under New-Hamp­shire; nevertheless, as the line of jurisdiction in those times of granting and settlement, was not expressly ascertained or known. Under these circumstances, it would not only be bad state-policy, but great in­humanity and injustice to the subject; for either the government of New-York or New-Hampshire to dis­possess them, inasmuch as both challenge a legal right; therefore, either title sealed and confirmed with the sweat and toil of the farmer is abundantly paramount to the other.

[Page 143] OUR authors, in their appendix, page 19th mis­represent the plea of the Bennington people, in saying, ‘To reason on their own principles, if equity con­firmed the claims of others under New-Hampshire, on account of priority of interfering grants, it would have afforded a fatal plea against the peo­ple of Bennington; because they ought then them­selves to have yielded up all the lands which are covered by more ancient patents.’ The people of Bennington, or rather the claimants under New-Hampshire, have ever insisted, that at the time the government of New-Hampshire granted those lands they had good right so to do; but that New-York had not. This matter is illustrated and proved by many arguments, and real facts in this treatise, par­ticularly in the 2d and 3d sections, to which the reader is referred. 'Tis true, provided the Benning­ton people had no further considerations in the mat­ter of title, but the priority of interfering grants—according to this method of arguing, they ought to yield up such part of that town as interferes with Wallumscock patent; but the consideration of settle­ment is undoubtedly, with the many other matters, material to be considered, as argued aforesaid.

SECTION VII.

HAVING gone through with the remarks on the New-York pamphlet, so far as immediately respects the title of those lands which has been the principal cause of the publication of this treatise—shall next­ly proceed to detect some notorious and dishonora­ble misrepresentations contained in the pamphlet a­foresaid, [Page 144]particularly in the appendix. In this brief review, it would be too tedious, as well as needless, to trace the authors through all their disguised and fictitious representations, and intricate windings. Shall therefore pass on with noteing such of their exhibitions as are the most cruelly fallacious; among which the story of the extention of the township of Bennington, merely by a vote of the inhabitants at a town meeting, to the westward from where it was intended to be granted, and within seventeen miles of Hudson's river, is the most flagrantly opprobrious. The story may be seen recorded in the 4th page of their appendix. ‘The grantees of the township of Bennington, discovered that the situation of the tract according to the intention of the grant, would be both inconvenient and unprofitable, as it in­cluded a large proportion of mountain; and they therefore, by no better authority than a vote of town meeting, presumed to extend it to the west­ward within seventeen miles of Hudson's river.’

As this representation in all and every part is en­tirely groundless, and no pretence of proof to sup­port it, but is the meer calumnious aspersion of those who have an implacable haired to the Bennington people, a positive denial of the facts alledged would be sufficient refutation of those facts. Nevertheless as the assembly of New-York have made a principal engine of this infamous story of their own creation, to destroy the good character of the people afore­said, by representing them to the government at home as the vilest of insurgents and out-laws—and inasmuch as the facts alledged are capable of dis­proof by mathematical certainly, and sundry demon­strations [Page 145]of this sort having been actually made, (though not with a view of disproving this calum­ny, as it had not then been published,) by admen­surations of the distance from Hudson's river, to the westerly line of Bennington, all which agree that it is at least twenty miles. Mr. Samuel Robinson for once made an actual mensuration of that distance, and found it to be twenty miles and thirty-five chains; his affidavit and Mr. Ebenezer Wood's toge­ther with an attested copy of the survey of that town by Mr. Matthew Clesson, the surveyor, is thought expedient to transcribe in its following order, which will abundantly serve to exculpate the people of Bennington from that odium wherewith they have been branded. The author is furthermore especi­ally directed by the inhabitants of that town, to ‘re­quest the government of New-York to vindicate what their assembly have before alledged, by an­other accurate mensuration of the distance from Hudson's river, to the westerly line of Bennington; and further notify that assembly, that as omnipo­tent as they may conceive themselves to be, they must nevertheless recede from the calumny where­with they have abused the inhabitants of that town, or continue under the relentment of those inhabitants:’ Which take an additional affront at the ill usage, inasmuch as our opponents tell us page 3d, it is to ‘be transmitted for the informa­tion of the government at home;’ and further in­form that it was to guard against the impositions which from the want of candor, they were appre­hensive the said settlers, who "spared no art or act of violence," would by their agents deceive the go­vernment [Page 146]at home, and therefore they had underta­ken to transmit a narrative of those settler's pro­ceedings, for the information of that government. It seems the said assembly fully resolved that the set­tlers and agents from the want of candor, would endeavour artfully to deceive, &c. and that them­selves were as fully resolved to over match them in a game of that sort, being greater practitioners than peasants: but artful as they are, they made a fatal mistake in advancing for matter of fact that which in its own nature is incapable of proof, and what has been disprov'd by evidence of a mathema­tical nature, and capable of further dis-proof by ac­tual mensuration. It is no ways marvellous that those gentlemen which govern in that assembly have an antipathy against the inhabitants of Bennington, who have had a great share in defeating them in ob­taining possession of the country of the New-Hamp­shire grants. It seems they are not insensible of their merit, for, say they, ‘it is to this township erected by a charter in itself void, and so greatly abused, that we are to ascribe all the opposition which has since been given to the jurisdiction of New-York.’ It is evident that these gentlemen have an evil eye upon Bennington inhabitants; for, when they men­tion the opposition to their jurisdiction, they take care to repeat the aforesaid groundless aspersion, by adding these words, "erected by a charter in itself void, and so greatly abused." They still proceed upon this their favorite topic, and draw particular inferences from it to their advantage, ‘for by chang­ing the situation’ of Bennington, ‘it is made to comprehend a large part of Wallumscock, which was granted under the seal of this province so [Page 147]early as the year 1739.’ This their scandalous assertion is twice repeated in page 8th. One of the passages is as follows: ‘Mr. Ingersoll, one of the most eminent counsel of Connecticut, and Mr. Syl­vester of Albany, were concerned for the defend­ants.’ When these gentlemen found Breakenridge's farm to be within seventeen miles of Hudson's river, and greatly to the westward of what the government of New-Hampshire had admitted to be the jurisdicti­on of New-York—they told him that it was impossi­ble to set up any principle for his defence. Accord­ingly, when his case was brought to trial, he re [...]u [...]ed to confess the lease, entry and ousture, agreeable to the rule, and the plaintiff being non-suites, obtained judgment in the succeeding July term, against the casual ejector."

THIS is far from being the true state of the case. Sundry causes which had been tried, were determin­ed against the claimants under New-Hampshire, and Mr. Breakenridge perceived it was expending money to no purpose, to maintain a suit at law against the New-York patentees, as they had such a co [...]binaton of interest with the judges, part of which were in­terested in the New-York subsequent patents which interfered with the grants under New-Hampshire, though not in those on trial. This, with many o­ther things too tedious to particularize, was the cause why Mr. Breakenridge would not defend the aforesaid suit in trial; but there was not a word said, (as he informs me) between him and his said attornies, about his farm's being within seventeen miles of Hudson's river; nor is it likely ever such a thing was mentioned in Albany county; the con­trary [Page 148]being so well known. Undoubtedly, this was wrote "for the information of government at home," thinking the fallacy would not there be detected it being at so great a distance.

OUR authors, page 10th, after giving a narrative of a riotous and tumultuous outrage, committed by the inhabitants of Bennington, for which proclamati­on had issued from the earl of Dunmore, against the principal authors of the disturbance "which could not be brought to justice," then they introduce a particular charge against Mr. Breakenridge, which is entirely destitute of foundation, viz. That he was one of the principal rioters. To this they join the former calumny of the westward extention of Ben­nington, "by a vote of their town meeting;" and add to both these, the groundless story of Mr. Brea­kenridge's council's inability to set up any principle in his defence, by reason of his being seated "with­in seventeen miles of Hudson's river. "All these fic­tions blended together, make considerable of a fi­gure, in their own words. ‘ James Breakenridge and Isaiah Carpenter, were two of the most inexcusa­ble of all the offenders: the first had seated him­self within seventeen miles of Hudson's river, where he knew it was impossible, on their own principles, that he could be protected by the New-Hampshire claim, he had declined a fair trial, and suffered judgment by default.’ With respect to Mr. Breakenridge's being active in any expeditions (the New-Yorkers denominate riots, mobs, felony, &c.) it is well known through the country of the New-Hampshire grants, he has not. In the 18th & 19th pages of the appendix, they repeat their former [Page 149]aspersion against the inhabitants of Bennington in the most virulent and emphatical language— ‘And what is still more shameful, they contend, they arm, they fight for lands, as a part of Bennington, which lies within seventeen miles of Hudson's river, and which the government of New-Hampshire ne­ver claimed, but admitted to be beyond their ju­risdiction.’

As there can be no doubt but these gentlemen really wish these things to be true, and having so frequently repeated them as being so, it is conjec­tured they by this time begin to believe them, or at least think others may; but that the impartial read­er may have the real truth of the matter, the follow­ing evidence is exhibitted.

"A plan of a township of six miles square (i. e. Bennington) lying in his majesty's province of New-Hampshire, laid by Matthew Clesson, surveyor, Abra­ham Bass, John Hooker, Ezekiel Foster, and Samuel Calhoon, chainmen, in pursuance of an order from his excellency, Benning Wentworth, Esq governor of said province, to Col. William Williams, lying six miles north of the province line that was run by Mr. Richard Hazzen, between said government and the province of the Massachusetts-bay, and twen­ty miles east of Hudson's river, viz. Begining at a crooked Hemlock tree marked W. W. six miles due north, or at a right angle from said province line, said angle commencing at a White-Oak tree in said line marked M. ‡‡ O. I. T. which tree is twenty-four miles east from Hudson's river, allowing one chain in thirty for swag, (which allowance is made through the whole following survey) and from said [Page 150]Hemlock tree west, ten degrees, north four miles, to a stake and stones; and from said stake and stones north ten degrees, east six miles, to a stake and stones; from thence east ten degrees, south six miles, to a stake and stones; and from thence south ten de­grees, west six miles, to a stake and stones; from thence west ten degrees, north two miles, to the Hemlock first mentioned, which survey was made November 1749.

(A copy.) Per Matthew Clesson, Surveyor." HAMPSHIRE, ss. October 30th, 1749.

Matthew Clesson, surveyor, John Taylor, Ezekiel Foster, and William Williams, chain-men, on Novem­ber 3d, 1749, John Hooker, Abraham Bass and Sa­muel Calhoon, chain-men, were all sworn to the faith­ful performance of the respective services aforsaid, and for the above survey.

Quorum, TIMOTHY DWIGHT, Justice Peace. (A Copy.)

THE deposition of Samuel Robinson, who, being of lawful age, saith, He being a surveyor, hath laid out in lots, a great part of Bennington, and is confi­dent that the west line of said town is the line that Matthew Clesson run before the town was granted (upon which said grant was made,) and as I have run all the lands east, adjoining said line, and some on the west side, I never knew of any other line that was called or known, or supposed to be the west line of Bennington; but according to that line, the proprietors have settled, not making any improve­ments in the least degree to the west of said line.

AND the deponent further saith, That his excel­lency Benning Wentworth, late governor of New-Hampshire, [Page 151]gave a warrant to Samuel Robinson and George Gardner, Esq'rs, and John Davoow, to get the line run and measured out from Hudson's river; which committee employed the deponent as a sur­veyor, with Timothy Abbot and John Drott, as chain­men, who were under the inspection of said commit­tee, and under oath, measured out from said river twenty miles, according to the aforesaid governor's warrant; and then turning a right angle north, ten degrees east, which they did, and found the west line of Bennington to be east of the line your deponent run, thirty-five chains; and so the proprietors of said town concluded the aforesaid Clesson line to be right, and have conducted accordingly.

AND further, your deponent saith John R. Bla­ker, Esq of the city of Albany, got some chain-men soon after your deponent had run the line, and mea­sured out, and told your deponent that Bennington west line was more than twenty miles from Hudson's river. And Archebald Campbell, of Albany, deputy-surveyor, told your deponent, that he had measured out, and sound it to be above twenty miles. And further saith not.

Samuel Robinson.

Sworn before me, in Hoosick,, the 29th March, 1774.

JOHN MALCOMB, Justice.

THE deposition of Ebenezer Wood, who being of lawful age, saith. He being chosen a select-man for the town of Bennington, and sent to perambulate the west line of said town, which accordingly I did; which line John R. Blecker, Esq of the city of Al­bany, told your deponent was more than twenty miles from Hudson's river, which was the line that Matthew Clesson run; and your deponent never see [Page 152]or heard of any other line but that, for Bennington west line. Further saith not.

Ebenezer Wood.

Sworn before me in Hoosick, the 29th day of March, 1774.

JOHN MALCOMB, Justice.

SECTION VIII.

OUR authors in the twenty-seventh and finishing page of their narrative, discover great invention and subtilty, who after giving an account of the unfortu­nate circumstances of the town of Hinsdale which has, say they, "been taken up by a royal mandamus." This township had first been granted by the govern­ment of the Massachusetts-bay, and upon the settle­ment of the boundary line between the Massachusetts and New-Hampshire, in 1739, it fell within the lat­ter, and by them granted, and fully ratified to the inhabitants and proprietors, who in addition to their title, had also the Indian right. This township, by the determination of the boundary line between New-York and New-Hampshire, fell within the ju­risdiction of the former, and was by them granted to Col. Howard, after it had been settled about se­venty years. The assembly of New-York in order to screen their government from the imputation of the blame justly due to so reprehensible a conduct, endeavor to palm it on the government at home, see page sixth, with respect to ‘ Hinsdale, a township in the south-east corner of Cumberland county. Even this is not to be ascribed to our government, it proceeded from a much greater, and the highest authority. A mandamus was produced from the crown, on the report of the board of trade, and [Page 153]by the advice of the privy council, which vested the grantee with a right of election, an act deci­sive in itself, and superceding the agency of the governor and council here, and the usual forms.’ A very extraordinary representation! The nature of a royal mandamus is diametrically opposite to this interpretation. The right of election in the grantees, is restricted entirely to crown lands which are unappropriated; in such lands, the grantee has a right of election, and common sense may teach, that neither a mandamus or any other crown grant cansubvert the property which the subject holds un­der the crown by prior grants; and though there be ever so many alterations in the jurisdiction, sundry of which have perplexed the town of Hinsdale, yet this should have no effect on the property of the subjects.—These grantees are likewise withheld from interfering on the right of the Indian subjects.—Yet, it seems Col. Howard had the vanity to locate his mandamus on the old plantation of Hinsdale, which was firstly appropriated by a purchase from the Indians; secondly, by a grant from the govern­ment of the Massachusetts-bay, and thirdly, by the government of New-Hampshire, and fourthly, by an uninterupted possession and occupancy about seven­ty years.

THE subterfuge the gentlemen make use of to rid their government from dishonor, in making this last grant of Hinsdale, is very extraordinary; it seems not well calculated "to be transmitted for the in­formation of the government at home!" who are undoubtedly competent judges of their own man­damus's, and no doubt will easily discern their last [Page 154]error to be worse than the first. Such preposterous granting of lands, is criminally injurious to the subject, as it never fails to embarrass the different claimants with many concomitant difficulties. Yet, still to cast the blame due to their government, on the king's mandamus, is more daringly injurious to the highest authority in the nation.

LASTLY, the maner of redress prescrided for the sufferers, viz. the old proprietors of Hinsdale, is the most shocking piece of contrivance, page 27, ‘ Hins­dale, a small township which has lately been taken up by virtue of a royal mandamus, is alone un­fortunate—but even here the possessors may be relieved, by a suitable compensation, equal to the value of their improvements in crown lands, free from the expence of fees.’ These gentlemen in their great clemency have also conceded that the New-Hampshire settlers in general may be thus consider­ed, ‘on the same terms, may be assigned to each of those who are seated on the soil, actually appro­priated to others by the government of New-York, and the possessions of which cannot for that reason be confirmed; such a proportion of crown lands as the governor and council shall judge to be ade­quate to their respective improvements.’

THEN they proceed to describe the tract, ‘a fer­tile and extensive country, in the northern part of the county of Charlotte, and between Connecticut-river and lake Champlain, still remains unpatented by their government, and might be planted and cultivated by these people:’—What a surprising condescention this! the posterity of the original proprietors of Hinsdale, especially, to be allowed the [Page 155]privilege to pull up stakes, quit their farms and possessions, houses, orchards, &c. and join company with the New-Hampshire settlers in general, and trudge off to the north-east part of the wilderness of Charlotte, and there commence another settlement, leaving their pleasant habitations, fields, tenements, and country, in exchange for a howling wilderness; a pretty exchange!—and this to gratify a number of New-York cormorants. But, let's stop a little and consider—whether it would not be more righ­teous to change the scene, and so the New-York patentees remove their patents, that interfere with the New-Hampshire grants, and lay them in she wil­derness of Charlotte, as neither government have ap­propriated it.

A sufficient reason to be offered in savor of the latter of these projects, is, that the settlers under New-Hampshire, are in deed, and in truth the lawful owners and proprietors of the lands they possess, as, 'tis apprehended, has been fully demonstrated in the preceding sections. Although these gentlemen have in the course of their narration, flung out very ex­traordinary hims of rewarding his majesty's soldiery, by the distribution of those lands, yet they may here again be reminded, (which may further serve as the above reason) that his majesty's proclama­tion directed the soldiery to make their pitches on unappropriated and vacant lands, this therefore they must do, at the hazard of losing their grants or re­pitching. For those lands which being antecedent­ly granted by the crown, by the agency of the go­vernor and council of New-Hampshire, must forever exclude the soldiery from pitching thereon; and [Page 156]put it entirely out of the power or the government of New-York, or the crown, to grant them to a se­cond person. And when it is considered, that the New-York land-jobbers have, long since purchased great part of the soldiery rights, and that for a mere trifle, and laid them out of themselves, at their own risque; their arguments on that subject cannot con­tribute greatly to the removal of the New-Hamp­shire settlers, to the exterior part of Charlotte.

OUR authors have given a tedious history of the suits at law, which have been commenced by the New-York patentees, against the claimants and oc­cupants under New-Hampshire, and have exhibited many specious appearances of fairness, equity, and impartiality in their trials. However, the reader must observe, that in every of those, so boasted of candid trials, the defendants, by the result, were to be dispossessed of their farms. They then continue to tell of the entire satisfaction of the vanquished, (together with such of the New-Hampshire claimants as attended the courts) relative to the validity of the New-York title.—Soon after this, they give a sur­prising account of riots and outrages, committed by these settlers, and mention Allen by name, (who they say, but a little before was so fully persuaded of the validity of the New-York title) as one of their lead­ers. This narrative is in itself incredible, it cannot be supposed, that men who were convinced, they had had an impartial trial at law, and of the insuf­ficiency of their own title, and the authenticity of that of their opponants, would raily to arm, in defi­ance of legal authority, and in defence of their own invalid title; especially, after they had publicly de­clared [Page 157]their own sentiments concerning that matter.

Now follows another quotation from our au­thors, which is no less than a barefaced insult o [...] those inhabitants, and one of the boldest of misrepre­sentations. ‘If the New-Hampshire claimants im­agined that they were aggrieved by the decisions of our judges, the means of redress were in their own power; and they ought to have sued their writs of error, and in the legal and ordinary mode, to have referred their cause to the final sentence of his majesty. But to expect a remedy incompati­ble with the administration of justice, and the rights of the subject either bespeak the greatest ignorance or presumption.’

COULD they once get this established, that there should be no access to his majesty or trial, but in this "ordinary mode," it would no doubt, be to their entire satisfaction; trials in that government would then easily become decisive; for in no case wherein the demand of the plaintiff is below the sum of five hundred bounds, a writ of error in favour of the defendant can issue. And the New-York attor­nies who compiled the New-York statings, and are also patented under that government, well knew that every action brought against the New-Hamp­shire claimants has been designedly laid below that sum. Yet they were possessed of that extreme bold­ness to aver in express terms, that ‘if the New-Hampshire claimants imagined that they were ag­grieved by the decisions of their judges, their means of redress were in their own power,’ i. e. by way of a writ of error.

[Page 158] THERE is nothing exhibitted in this New-York pamphlet which more sensibly deserves resentment than their pretensions of indulgencies, favors, &c. conferred on these claimants by that government— ‘To the honor of the government of New-York, it may justly be asserted, that the New-Hampshire claimants have received every mark of favor and indulgence which the circumstances permitted.’ Such hypocrisy debases human nature, is the pest of society, partakes of faishood and treachery; and what renders it pecularly vile is that it usurps the feat of virtue, and destroys faith in communities, and is the source of cruel jealousy. Had the govern-of New-York been truly friendly to those settlers, it had been returned again; and mutual good will supplied the place of hatred and strife. But alas! so long as the fee of the country of the New-Hamp­shire grants is the object in view, by the government of New-York, how it is possible for peace and good order to take place, can't well be conceived. Well would it be for that government, and infinitely bet­ter for the settlers under New-Hampshire, were they annexed to some other government; but they say, no. Query, why? The answer is easy. They would then loose sight of the aforesaid desirable ob­ject: otherwise, surely they would be glad to part with such rebellious subjects as they represent them to be. For the truth no doubt is, that they are in hopes some better fortune may in future attend them. And that they can take and execute some of the leading men among these inhabitants; and so frighten and impose on the rest; and finally, by this means avail themselves of their estates and subju­gate [Page 159]the country. This is all they can desire in con­tinuing it under their jurisdiction. That they have in reality a view to this, will further appear by some memorable sentences recorded in the 25th page of their appendix. "We may," say they, ‘readily conceive, that Breakenridge and his party, have a­bundant reason to wish for an alteration of juris­diction. The public crimes and private wrongs which they have perpetrated, must make them look forward to the hour of tranquility, with the most anxious apprehensions. The injured may then demand satisfaction for all their sufferings—An attonement must then be made to the coun­try, for the violation of its laws.’ Here the New-Hampshire settlers may read their intended doom, in consequence of the ability of the government of New-York. And one reason why this government have not already destroyed the inhabitants of the New-Hampshire grants, with fire and sword, is their want of ability; and this inability, in great part, consists in this, that the common people in the go­vernment, are universally of opinion that the inha­bitants have a good right to those lands, and should not be molested in the peaceable enjoyment of them, and conseqently will not assist their civil officers in taking possession of their tenements, or them as ri­oters. That they are no further turbulent than what is necessary to defend their persons and properties, from the cruelty and monopoly of their rulers. This is the ground of all the lenity, forbearance and indulgence of that government towards those inha­tants; and it is hoped, if these excessive favors should be passed over without their thanks, they may yet be excused for the neglect.

[Page 160] As the design of this section was, in a concise manner, to point out some of the most notorious extravagancies of the government of New-York, the subject can't with propriety be passed over, without taking a short review of the forementioned laws of that colony, which are the most apparent portrai­ture of their horrid malevolence and caprice. Pas­sing these laws, which are evidently calculated with a design of extirpating the inhabitants, by them laws alluded to from their goodly land, nay, from the face of the earth; is no less than lavishly foam­ing out their own shame; laws that ought, and are contemned and disregarded by every lover of virtue. Laws and society-compacts were originally designed to protect the subjects in their property. Loyalty and subordination to such government, is essentially necessary, for the good of society, and all good and liege subjects will support such laws and legislators. But, as in the present instance, when laws, in their original design and administration, are degenerated from the good ends for which laws and government were instituted, terminating in the ruin and destruc­tion of the society it should secure and protect; from the same principles, viz. self-preservation, the sub­jects are obliged to resist and depose such govern­ment. And, inasmuch as those laws, together with some remarks on them, are to be seen in the narra­tive part of this performance, shall therefore con­clude, with leaving the reader, from his own me­ditations, to pass such sentence concerning this mat­ter as may appear reasonable.

SECTION IX.

IT may be of some moment, towards the close of this treatise, to exhibit a number of special motives which induced those inhabitants to prosecute settle­ments on the controverted premises. As,

FIRST, On the good faith of his majesty's grants, by the agency of the government of New-Hampshire, the validity of which has been sufficiently argu­ed. And,

SECONDLY, by engagement from a proclamation by his late excellency Benning Wentworth, which for the more public information, is here inserted.

A THIRD and weighty inducement to the settle­ment of those lands, was argued from his majesty's express order, prohibiting the government of New-York from granting any of those lands in dispute, which is as follows.

A FOURTH, and last special Motive for the carry­ing on, and extending those settlements, was from a report of the lords of trade, as follows,

THESE inducements are indisputably authoritative, and need no commentation: Yet notwithstanding the priority and preferance of the New-Hampshire title to that of New-York, and the so many corroberating and concomitant in­ducements to the claimants under the former, to settle and cultivate those lands; yet the assembly of New-York, in sun­dry parts of their state of the right, &c. and more particular­ly through the appendix, treat those inhabitants, merely on account of such settlement, with the most extreme injury; who, instead of arguing, only declaim against them, and go on in a gradation of consequences drawn from false premises, till they have dragged them from their true character of ho­nest men, to that of usurpers, rioters, and felons. Although the quotations from our authors have already been lengthy, yet that a precedent of their injustice may not here be want­ed, the following, from the third page of their appendix is inserted.

‘BUT though the same principles have been explained, and enforced in several acts and proclamations of govern­ment, as well as on repeated trials in our courts of judica­tory, [Page 169]they have left no suitable impression on the conten­tious claimants under New-Hampshire. On the contrary, in contempt of the dictates of justice, the decisions of law, and the civil authority, have their encroachments, which were few in number at the time of the royal determinati­on, been increased and extended in a tenfold proportion; and that in general by men, who cannot plead that they were deceived or ignorant of the nature or merit of their claim, which it appears, were too notorious to have es­caped their observation, but who in spite of every warn­ing and remonstrance to deter them, which human pru­dence could devise, engaged as volunteers on the side of New-Hampshire, and wilfully plunged themselves into the controversy. To extenuate their own indiscretion and misconduct, calumny and misrepresentation are their only resource; and accordingly without the least reason, they charge the government of New-York with partiality, and every land holder under it, upon whom they have tres­passed, with injustice and and oppression; asserting, that because they have sanctified their claim by a wrongful possession, they ought peacebly to enjoy the fruits of their usurpation. To mortify their pretentions they have spar­ed no art or act of violence, however criminal; and after all, as if they were really injured, and the objects of regard, they do not hesitate to carry their complaints to the throne, and by special agents to solicit some extraordinary act of favour, by which their offences may be passed over with impunity, and their encroachments perpetuated in prejudice to those who enjoy a clear title from the crown, under the great seal of New-York.’

As this clamorous quotation is already mostly answered, shall only remark, as to those settlers extending their en­croachments in a ten fold proportion, since the royal deter­mination. It hath been fully evinced that this determina­tion respected jurisdiction only, and the before recited royal order and report of the board of trade, were accounted suffi­cient to exclude all manner of doubts in the minds of the New-Hampshire claimants of the validity of their title. They [Page 170]truly cannot plead that ‘they were deceived or ignorant of the nature or merit of their claim.’ This matter was elucidated by the highest wisdom and authority in the nati­on; they rejoice in the clemency of their sovereign, and in the wisdom and impartial justice of the honourable board of trade, exhibited as aforesaid, upon which encouragement those claimants have greatly extended settlements on those lands, in a more special manner on Onion river and lake Champlain, between the township of Panton, which abuts on the lake opposite Crown Point, and the said river, and north of it almost to the forty-fifth degree of north latitude, and preparations are vigorously making to extend these settle­ments to the very bounds of the province of Quebec It is seldom any new country settles with such rapidity, notwith­standing the oppositions they meet with from the govern­ment of New York: The expence of clearing roads, building mills, moving to and settling in that wilderness country only for two years last past, would amount to no very inconside­rable sum. And those settlers from the foregoing reasons, do not in the least hesitate, but that they in so fulfilling the conditions of their charters, have and are acting agreeable to his majesty's will and pleasure; and that those labours will not only be for their own emolument, but for the enlarge­ment of the British empire, and addition of the crown reve­nue.

THE assembly of New-York have been very particular in their history of the tumults and ri­ots made by those settlers, in opposition to that government, (many of which facts must be confessed to be true) though they have carefully o­mitted their manyfold provocations, yet, with all their par­ticularity have given but a very imperfect idea of those transactions. I shall here, therefore, waving particulars, give a general review of the oeconomy of those settlers in their op­positions to that government. For defending their proper­ties, they were indicted rioters, the next thing was to defend rioters; then they had two objects of protection, viz. their persons, as well as property: They were at first greatly in­timidated at the empty appearance of law, that their oppo­nents [Page 171]were so conversant with, sometimes despairing of maintaining their possessions; yet upon extremity, rather than quit their substance to the insatiable ravishers, would rally and frustrate their designs: Thus, when the sheriff of the county of Albany with his posse came to dispossess some of them, they most generally, boldly took up arms and ap­pointed leaders. Matters having come to this, not long af­ter, the inhabitants assembled and appointed committees of safety in the several towns throughout their settlement; this general committee have the conducting of the public affairs of the country for its security, till his majesty settles the controversy. They have erected several companies, which by the votes of the soldiers are furnished with officers, these companies form a regiment which are known by the signifi­cant character of green mountain boys, who are generally in the prime of life, well versed in the use of fire arms, and of robust constitutions; probably no American regiment in an interior defence could excel them, or that would willingly contribute to the support of the crown of Great-Britain; for it is observable, that such subjects that will not fight for their property, will never fight for their king. And, the ge­neral instructions from the committee, ever have been, not to act in any thing against the government of New-York, but on the defensive.

IT is in the nature of things impossible to pass a right judgment on the conduct of the New-Hampshire settlers, without taking into view the treatment of the government of New-York towards them. All cases must be determined upon the peculiar circumstances attending; no act can scarcely be conceived of, which, under certain attending circumstances might not be lawful. It will be readily ad­mitted on the part of those settlers, that, provided the go­vernment of New-York, and its patentees have a clear and in­contestible right to those lands; and that they are intruders, and by force and violence have maintained such encroach­ments, then, they are truly guilty, in manner as the assem­bly of New-York have alledged: But on the contrary, if those settlers have a legal and incontestible right to those [Page 172]lands, that they prosecute settlement on the good faith of that title, and the sundry approbations of both their title and settlement from the British administration, then, they are not guilty in manner as those gentlemen have declared; and the impartial public, instead of viewing them as usurp­ers, rioters and felons, will justify them in their conduct, and esteem them as good members of society, leige subjects to the crown of Great Britain, and good soldiers for defending their persons and properties.

THUS, is humbly submitted the state of the controversy, which has for many years subsisted between the government of New-York and the settlers under New-Hampshire; by im­partial justice must every act stand or fall; if those settlers are in the wrong, they are criminally so, but if not, then the allegations of their opponents will be adjudged as futile and cruel.