THE R i g'h T OP THE tjfcjVERNOR and Company^ OF THE . COLONY OF . to NNEcricufi To Claim an'd Hold the LANDS Within the Limit! of their ^ C H A R T E R, Lying Weft of the Province of NEfF-YORK^ Stated and Confidered: e in i L E T T E R to J . H . Esquire; TO WHICH IS added; An ACCOUNTof thePurchafefrom the Indians; of Part of.thofe Lands, by the Sufquehan-* nah and Delaware Companies, and their Pro¬ ceedings thereon. HARTFORD! Printed by Eben. Watson, near the Great«j Fridge, 1773; A LETTER, gfr. SIR, ■ff'f'I’-f-f'f-H E IS I lad faw you, the Claim of the Governor and Company ot the •fyty W •#-£• Colony of Connecticut to the Lands, within the Latitudes exprefled in their former and renewed Charter, ******* lying Weft of King Chafes the Second’s Patent to the Duke of York,now called the Province of New-York j was the Subject of oyr Converfation.-—I then gave it as my Opinion, that their Title te thole Lands, was good and va¬ lid •, you differed from me, and requeued of me the raafons on which I founded m» Opinion ; we were diverted from purfuing ihc Ce-cverfatios os that Subjeft, at that Time ;—I will now re-afiame the Subjeft, and give you the Reitoas of my Opi¬ nion, which are as follow, to wit. The Erft Patent granting any part of the Con¬ tinent of North-Amerki, was that granted by Queen Elizabeth, to Sir Walter Ra ? eign, dated 25th March, 1584, of iucfo Terrtnrie:., as he thauld difeovw between 33® and 40® of North. Latitude , < . 4 .) , ’ tne Equinoctial Line j which Pateni, o&». • Waller’s Attainders. ‘ KrNG^fe^^,^a tents, dated the 10th of April, 1606, divided VirgTfha lr.:o two Colo¬ nies ; the fouthern called the firfl Colony between 34° and 41? North Latitude from the Equinoctial Line, he granted to the London Company, fo cal¬ led: The-Northerp, called-the-fccotid-Colony, be¬ tween 38° and 45 0 'North Latitude, he granted to the' Plymouth Company. This Patent for South Virginia, was vacated at the Defire of the Patentees—and King James, in May 1609, grants them a new Patent, bounded North to the 40° of North Latitude from tbe Equinoctial Line. The' Patent for North Virginia, was not vacated fo Toon, In 461.4, Capt. John Smith was in feme Parts of Nprth Virginia, and firft gives it die Name of New-England. '•' ' ' King James, by a new Patent, dated Nov. 3d, 1620, incorporated the.Duke of Lenox, the Mar- quiffes of Buckingham and Hamilton, the Earls of Arundel and Warwick, Sit Ferdinando Gorges and thirty four others, by the Name of The Great Council eftabliihed at Plymouth, in the County of £)«von, for the planting, ruling, ordering and go¬ verning of New-England, ' in America--and “ Grants to them, and their Succefiors and Af- “ figns, all that Part of America, lying and being “ in Breadth from 40® of northerly Latitude from “ the EquinoCHal Line, to the 4S P of the fa ; d “ northerly Latitude, inclufively, and in Length of and within, all the Breadth aforefaid,through- “ out the main Lands, from Sea to.Sea; together “ alio with all the firm Lands, Soil, Grounds, Ha- yens, Ports, Rivers, Waters, Fiihings, Mines ' “ and ( 5 ) V and Minerals, as well Royal Mines of Gold and- “ Silver, as other Mines and Minerals, precious “ Stones, Quarries, aad all and fingular other “ Commodities, Jurifdi&ions, Royalties, Privilc- ges, Franchifes and Preheminences, both within “ the faid Trad of Land upon the Main, as alfo “ within the Iflands and Seas adjoining. Provided “ always—That the faid Ifiarids, or any the Pre- “ mifes, by the faid Letters Patent intended and “ meant to be granted, be riot adually pofTeffed “ or inhabited by any other Chriftian'Prince or “ State, nor be within the Bounds, Limits, or , c< Territories of that Southern Colony heretofore by us granted to be planted by diverfs of our loving S.ubjeds in the South Parr. *' “ And to the End that the faid Territories may “ forever hereafter be more particularly known “ anddiiliHguiftied, our VVill and Pleafureis, that “ the fame fhall from henceforth be nominated, “ termed and called by the Name of New-Eng- “ land, in America, and by that Name of New- “ England, in America, the faid Circuit, Precindt, “ Limits, Continents, Illands-and Places in Arne- “ rica aforefaid—We de, do by- thefe Prefents, “ for Us, our Heirs, SuccefTors, name, call, eredt; ’ “ found and eftablilh, and by that Name';to have “ Continuance forever. “ And further, our Will and Pleafure is, and “ We do by thefe Prefents, charge, command^ “ warrant and authorife the faid Council, and their “ Succeflbrs, or the major Part of them, which “ fhall be prefent and afTembled for that Purpole^ “ fhall, from Time to Time, under their common “ Seal, diflribute, convey, aflign'and let Over fuch " particular Proportions of Lands, Tenements, 6i 2nd Hereditameats, as are.by thefe Prefentsfor- 1 "■ "• . :: “ jnerly (' 6 ) ajerly granted unto each eur loving SubjeSs-». ^ naturally born, or Denizens, or others, as wall- ** Adventurers as Banters, as by. the faid Com- 41 pan-y, upon a Comm;filqn of Survey and Diftri- v ' burden executed and returned for that Purpofe, r ' L Chalibe named, appointed and allowed : where- in.our Will and Heafure is, that Refped be had as- well to the Proportion of the Adventurers, 23 ^ to. the fpecia! Hazard, Exploit or Merit of any Pfcrfonfoto be recompeaced* advanced or r.e- warded.” This Charter or Patent to the Council eftabliffeed 3 £ Plymouth, is th-e great civil Bafis, on which ail 9 hs- future Patents, dividing N.ew-England, are •sounded. The Council eftabhfhed at Plymouth, ^ikes they hadobiained the aforementioned Patent, gfaeeeded to> divide out the Lands therein menti- and deferibed, and to grant and convey the Saw?, t-Q.diffirent Perfons and Companies, their misdates and others-r-And by then- Deed, inden- Itd, under their common Seal, bearing Date the ;Q,ihDay of March A’.D. 162 8'— They “give, grant and confirm- to Sir Henry Rofewell, &e. their Heirs, a? i&Ajfigns, and their Ajfociates fcrev&, ail that Pari '-ij! New-England in Arn-,rka, which lies and extends jk&saes. a gnat Rhter, 'there commonly called Mono- tstrsak, alias Merrimack , and a certain other River there- idled Charles' River, being in the Bottom of e iirtrin Ray, there commonly called Majfacbufetts, alias M-stiasbnfnts, alias Meffaiuftts Bay,'and aifo all Vtd fitignhr thsfs Lams and Hereditaments viha'Jo- TO?r, lying within the Spate of three Engli/k Miles, iti the South Rjirt of faid Charles River, or of any ditch every Pari thereof ; and all and fingular the ZiVtdi aid Hereditaments vibatficvcr, which lie and kt within the Spate of three EngliJIs Miles to the N.orlbwari tier'ibteard'of thefaidRivercalledMontmack,dTia r sMer- rimack, er to the Northward 'of anv and every fpffft thereof ■, and all Lands and Hcridetanmtswhatfeevss'^ lying within ike Limits afore faid, North and South, ip Latitude and in Breadih,and in Length and LongiMdt, cf and within ail the Breadth afore/aid, through cut ibe Main Lands tiers , from the Atlantic Sea Vot& Ocean on the Lad Pan, to the South Sea on the W>eji Part, and all Lands and Grounds, &c.~~And alfo nil Itlands lying in America aforefaid, in the fdid Sms, vf either oj them, -on the weftern or eadsrnCaaJlsd&cP Kino Charles t he hi ft confirmed the forcgOitrg Grant from the Council at Plymouth, to Sir Hen- ry Rofewell, Stc. and Numbers of others,his Alb- ' ciates, by Letters patent, under the Great Seal <&£ England, dated March 4th i'629, with the fatae Bounds andLimits,and with the following Provrf©, viz. “ Provided always,ibat if the faid Lands, fflatidi* er any the Premifes before mentioned, and by the Letters patent loft mentioned, intended and mtetv/Z do be granted, were at the Lime of granting of fbi faid former Letters Patent , dated the $d of Novem¬ ber, in the 18 th Tear 0f the Reign of his late Mb- jidy. King James ibe fir ft, aPually pcjfffed or inbati- •ied by anf-tthtr Gkriftian Prince or State, or veiri Within the Bounds or Territories of the /aid Souths® ( Colony ; then before granted by the faid King to hi planted by diver fe of his loving Subjefls in the foWfe Part of America ; that then the faid Grant /hall #oS , extend to anyfucb Parts or Parcels thereof,fo formerly inhabited, or lying within the Bounds of the feather® ^Plantation aforejaid. But as to fuch Parts or Par¬ cels fo pcjjejfed or inhabited, by any jucb Cbriftia* Prince or State, or being within the Boundaries a fete- Maid, (hauldbc utterly void.” And afterwards, Robert Earl of Warwick, Prefj- dpnt of the faid Council of Plymouth, by Deed, bearing 'bearing Date the i^th Day of March, A.D. ^ives, grants and confirms unto the Right Hon. Yifcount Say and Seal, Lord Brook, &c. to the Number of Eleven, their Heirs and Affigns, and their Aflociares forever— 14 All that Part of New- Engldni in America, which lies and extends itfelffroth a-River there called Narraganjet River, the Space of Forty Leagues upon a fit ait Line near the Sea Shore, towards fhe.Ssutbwefl, M / efl and by South, or Weft, as the Coajllyeth towards Virginia, accounting three Eng- lifh'Milts to the League, and all and Jtngular the Lands and. Hereditaments wbatfoever, lying and being within the Lands aforefaid, North and South in Lati¬ tude and Breadth, and in Length and . Longitude, of and within.all the Breadth aforefaid, throughout the' main Lands there, from the weliern Ocean to the- South Seas -, and all Lands and Grounds, Soil, Wood and Woods,Grounds,Havens, Ports, Creeks'andRivers', Waters, Fifhings and Hereditaments wbatfoever, lying within the /aid Space, and even Part and Parget there¬ of, and alfo all .IJlands lying in America aforefaid, in • tbefaid Seas, or either of them, on the We fern or Majlern Codfis or Parts of the Paid Pratts of-Land by thePrefents to be'given or granted.” The Council eftablilbed at Plymouth proceeded' in like Manner to grant and convey, divide and let' but the .Remainder of -New-England $ and in the! Year 1635, having granted and conveyed faid Lands,, they refigned their faid Charter into the Hands of the Crown j which appears a little ftrange- when they really had nothing to refign, as theyhad' actually before.granted and conveyed away every thing. .they took by Virtue and Force of faid Patent. —Lord Say .and Seal, arid Lord Brook, and five ■- others, in July 1635, impower John Wintfirop,- juii. Efq; their Agent, in their Names, to take Pof- felliOrt ! ( 9 ) feflion of the Lands at the Mouth of Connecticut , River; and foon after he arrived in New England, and built a Fort at the Mouth of faid .River, took PofTeflbn of the Lands in the Name and for the Ufe and Benefit of his Employers, and called the Place where he built his Fort Say-Brook, which Name it dill retains. Soon after Mr. Hopkins, Hooker, Wyllys, and a Number of others, Aflb- eiates and Aftigas, under the Patent laft mention¬ ed, alfo took Poffellion of the Lands on Connecti¬ cut River, at Hartford, Windfor, Wethersfield, &c. and began Improvement and Cultivation there, entered Articles of Government, under which they lived and governed till the Reftoration of King Charles the Second. In the Year 1637, Mr. Ea¬ ton and others, Aftdciates and Affigns, under the fame Patent, began a Settlement at Nesv-Haven, and claim and extend their Settlement to Dela¬ ware Bay and River, built a trading Houfe, pur- chafed Lands of the Natives on both Sides of De¬ laware, and fent fifty Families to fettle there. . - They, as the People on Connecticut River had done, enttred into a CompaCt for Government, under which they lived and governed till the Ref- foradon of King Charles the Second, when they were united into one Colony; by that King's re¬ newed Charter, made in April, 1(62 : Before which Time they had purchafed of, and conquer¬ ed in juft War from the Natives, the moft or all of the Lands within their Patent, an the Eaft Side of Hudfo-n’s River, and had purchafed a large TraCt on both Sides of Delaware River and Bay— and had alfo, before that Time, purchafed of Lord Say and Seal, and Lord Brook, &c. the Lands which they had taken Foffeflbn of, for their own intended Ufc and Improvement^ and which they B ' were were willing to fell and difpofe of, as they had by that Time laid afide all thoughts of removing themfelvcs and Families into Nevv-Eng!and, as they at firftpurpofed and defigned. The Dutch and Swedes claimed to have poffef- fed theLands atNew-York, Albany and the Jerfie.% before theGrant and Patent, made Nov. 4th 1620, by King James, to the Council eftablilhed at Ply¬ mouth in the County of Devon. September 19th 1650, Articles of Agreement were made and con¬ cluded at Hartford, on Connedlicut River, be¬ tween the Delegates of the Hon. CotnmifTionerg of the united Colonies, and the Delegates of Pe¬ ter Stuyvefetit, Efq; Governor General of the Nevv- Netherlands. The Commiflioners for New-Ha¬ ven complained to faid Delegates, among other Things, “ of feveral high and hodile Injuries which they and others of that Jurifdiftion have received from and by Order of the ajerefaid Monf. Kieft, in Dela¬ ware Bay and River , and in their Return thence, as by their former Proportions and Complaints may fully ap¬ pear, and befides the Englilb Rights , they c'a-m-d by Patent, prefer,ted andfhewed fever al Pur chafes they lave made on both fides the River and Bay of Delaware , of lever al large! rafts of Lands untold fomewhat above the Dutch Houfe or Fort there, with the Confideraiicn given to the faid Sachems and their Companies jer the fame, acknowledged and cleared by the Hands of the Indians, whom they affirm were the true Proprietors, and tejlifed by many Witneffes ■ Lhey alfo affirmed, that according to the bell of their vfppreberfm, they have (tiffined £ 1000 Damage there, partly by the SwediB) Governor, but chiefly by Order of Monf. Keift, and therefore required due Satisfaction, and a peaceable Pofjeffton of the aforefaid Lands , to enjoy and-improve according to their juft Rights, She Dutch Governor, ( ri ) ly Way of Anfwcr, and infsfted the Title and Right of Delaware, or the South River, as they call it, and to the Lands there as belonging to the hllgh and Mighty States, and the Weft India Company, and prof eftsd be mtft pro l eft again ft ary other Claim, but is not provi¬ ded to make anyJuch Proof, at in fuch a Treaty might be expelled, nor had he Ccmnvffm to treat or conclude any Thing therein. - Upon Confideraticn whereof, We the /aid Arbitrators or Delegates, wanting fuftici- ent Light toiftueot determine any Thing in the Pre- tniftes, are neceffttaled to leave both Parlies in Satu quo prius, to plead and improve their juft bttrefts at Delaware, for planting and trading, as they (hall fee Caufe, only, we defire that all Proceeding there, as in other Places, may be carried on in Love and Peace, till the Right may be further conftdtred and juftly iffued either in Europe or here, by the two States of England and Holland Concerning the Bounds and Limits for the Ex- tenfion of the Dutch Claim Eaftward, it was then agreed, “ That upon Long-lfland, a Line run from the Weftermft Part of Oyfter Bay, and jo a Jlraigbt and dire ft Line, to the Sea, /halt be the Bounds be¬ twixt the Englifh and Dutch there, the eafterly Part to belong to the Englifh, and the weftermoft Part to the Dutch. The Bounds upon the Main to begin at the Weft Side of Greenwich Bay, being about four Miles from Stanford, and fs to return a Northerly Lint twenty M'les up into the Country, and after as it (hall be agreed by the two Governments of the Dutch end. New-Haven , provided the [aid Line come not within Ten Mftes of Hudjon's River ; and it is agreed that the Dutch jhall not at any Time hereafter build any Heufe dr Habitation, Within fix ’Miles of the faid Line , the Inhabitants of Greenwich to remain (till further Con¬ federation thereof be bad) under the Government of ( J2 ) the ■ Dutch, End it is agreed that the eforefaid Bounds and Limits , both on the Ifland andMain, tkall be ob- ferved and kept inviolable , both by the Englifh and the united Colonies , and all the Dutch Nation , with¬ out any Encroachment or Molejlaticn, until a full and ■final Determination be agreed upon in Europe by mu¬ tual Conjcnt of the two States of England and Hol¬ land .' In this State the Affairs of the Colony of Con¬ necticut remained, until the Restoration of King Charles the Second, when the Colony appointed their then Governor .Winthrdp, their Agent, to follicit a Confirmation of their-Patent; and that • Gentleman, under the Patronage of Lord Say and Seal,&e. whofe Rigljt the .Colony had purchafed of Col. Fenwioh, their Agent, at what they call a great Price, for a poor People, petitioned King Charles accordingly 5 and on the 23d April, 1662, .obtained what King Charles calls, the Renewed Patent or Charter to the.Colony of Connecticut— •wherein and whereby the (aid John Winthrop, John Mafon, Samuel Wyllys, and fixteen others iy Name, and all fuch others as then were, or thereafter Ihould be admitted and made free of the Company and Society «f the Colony of Con¬ necticut, in America, are ordained, conftituted and •declared to be, and forever after to remain, one .Body Corporate and Politic in FaCt and Name, by the Name of Governor and Company of the Englifh Colony of Connecticut, in New-England, in America, with certain Powers, Privileges and • Authorities therein exprefied—therein alfo grant¬ ing to them and theirSuccelfors, “ All thatPart of ■.“ our Dominions in New-England, in America, “ Bounden on the Eaft by Narraganfet River, ' “ .commonly called Narraganfec Bay, where the ‘ ' “ faid •( i3 ) “iaid.-River falleth into the Sea; and on the “ North by the Line of the Maffacbuietts Plan- “ tation 5 and on the South by the Sea; and in “ Longitude as the Line of the Mafiachufetts “ Colony, running from Eaft to Weft, that is to “ fay, from the faid Narraganfett Bay on the Eaft, “ to the Sourh'Sea on the Weft, with the Iftands “ thereunto joining, together with all firm Lands, “ fcc. to have and to held the fame, unto the faid “ Governor and Company, their Succeffors and Affigns forever, upon Truft, and for the Ufe “ and Benefit of j.hemfelves and their Affociates, “ Freemen of the faid Colony, their Heirs and “ Afiigns,” in free and common Soccage, yield¬ ing in lieu of all Services, only the one Fifth of all Gold and Silver Oat—faid Grant to becopftru- ed, reputed and adjudged moft.favourably for faid Governor and Company. By this Charter the two Jurifdi&ions of Con- nefticut and New-Haven, were united, and all the Lands aferefaid are granted to them, faving what might be then actually poffeffed or inhabited by any other chriftian Prince or State, 8rc. as is ex¬ prefly excepted by the Provifo in the Patent from King James the firrt aforementioned. The Dutch and Swedes were at this Time, and long before had been poffcffed of the Lands now belonging to the Colonies of New-.York and New- Jerfcy, and had made confiderable Plantations and Improvements there.- Whereupon they contended—That, onc.Hudfon was fentout by the Dutch Eaft India.Company, to difeover a North-Weft Paffage to China, and thac having difeovered Delaware Bay, he proceeded to New-.York, and penetrated up Hudfon’s River, as far Northward as Lat.4.3—That in 1614, the States ( H ) General granted a Patent to funder Merchants for an exclufive Trade on that River—-That the fame Year they built a Fort on the Weft Side of the fame, near Albany—That this Claim being prior to the Grant tirade by King James theFiril, to the Council at Plymouth, thole Lands did not pafs to the laid Counci', and conlcquently not to the Colony of Conntfticut, by the former Patent, nor by King Charles the Second’s renewed Char¬ ter af.orementionedL Jn 1*664, there feeing a Way between theEnglifh and Dutch, King Charles the Second meditated fending a Force, to caufe the Dutch to hmender the Lands by them poffdTcd, on Hudfon’s river, as aforeiaid, and on the 12th March, 1664, by his Letters patent, “ Gave anti granted unco, his Royal Brother, James Duke Lf Yotk, all that Part of the main Land in Ne«- England, beginning at a certain Place called and known b ; y the Name of St. Croix", next adjoining to Net? Scotland, in America, and from thence ex¬ tending along the Sea Coaft, unto a Place called Peronequic, or Renaquid, and fo up the River thereoffto. rfig furtheit Head of the fame, as it tendeth "Nbrthwardj and extending from thence to the River Kenebequic, and upwards, by the (Fort- eft Courfej to the River Canada Northward : And a'.faaU that loan'd or Iflands commonly called by the fpveral Name or Names of Mattawacks or Long-Kland, fituate, lying and being towards the Weft of Cape Cod, and theNarragahfets, abutting tip the main’Larid,'between the two Rivers, there called and known by the Names of Conne&icut and Hudfun’s River, together alfo with faid River called Hudfon’s River, and all the Land from the Weft Side of Conheft'cuc River, to the Eaft Sidy of Delaware Bay, and alfo all thofe feveral Iflands j called or known by the Names of Martin’s Vine¬ yard and Nantucks, otherwife Nantucket-, toge- gether with all the Lands, Sods, Iflands, &c.— 'iAnd all h:s Ed ate, Right, Title, Intereft, Benefit, ; Advantage. C!a : m and Demand of, in or to the j faid Lands and Premiffes, or any Part or Parcels ; thereof.” And on the 26th of April, 1664,'he al- \ fo gave a Com niffwn to Col. Richard Nicolls, to 1 difpofiefs the Dutch of the Territories by them 1 claimed and called New Netherlands, and to take , Poffeflion of the fame for the Duke of York, ' which Comm'(Tun Col. Nicolls came from Eng¬ land upon, and executed in Augufl:, 1664; where- by it became neceffary to fettle the Extent of the Dutch Claim ealhvard, and thereby to afeertain the Bounck and Limits of his Royal Highnefs the Duke’s Patent, and the Patent to the Colony of f Connefticut: And thereuponCol. Nicolls, SrRo- bert Carr, George Cartwright, and Sa-muel Mar- verick, by Virtue of his Majefty’s Commiflion to them, bearing Date April z6, 1664, appointing them his Commifftoners to vifit the New-England Colonies, with full Power and Authoriry to hear, and receive, and examine, and determine all Com- i plaints, and Appeals, and proceed in all Things , for providing for, and fettling the Peace of faid 4 Country. On the 30th of November, 1664, at ■ New-York, undertook to fettle the Bounds and • Limits of his Royal Highnefs the Duke’s Patent, , and the Patent to Connecticut, and made their De- ■ cree thereon, in the Words following, viz. “ We > “ have heard the D ffereaces about the Bounds of f“ the Patents granted to his Royal Highnefs the DukeofYork, and his Majefly’s Colony of Conneflicut. And having deliberately confi- dered all the Reafons allcdged by Mr Allyn. ( 1 $ ) “ fen. Mr, Goid, Mr. Richards, and Capt Win- throp, appointed by the General Aflembly held “ at Hartford, the i »th of Oftober, 1664, to sc- “ company John Winthrop, Efc); the Governor “ of his Majefty’j Colony of Connecticut, to New- “ York, and by Mr. Howel and Capt. Young of “ Long-If!and, why the faid Longfflmd fhould “ be under the Government of Connecticut, “ which are too long here to be recited- “ We do Declare and Order, the fouthern Bounds ,f of hisMajeffy’sColony of Connecticut is theSea, “ and that Long Ifland is to be under the Go- “ vernment of his Royal Highnefs the Duke of “ York, as is exprefled by plain Words in fa 'd “ Patents refpeftively. And alfo, by Virtue of “ His MajeHy’s Cammiflion, and by the Confent “ of both the Governors and the Gentlemen a- “ bove-named. We doalfo Order and Declare, “ That the Creek or River, called Momorc- “ nock, which is reputed to be about twelve “ Miles to the Eaft of Weft-Chefter, and a Line “ drawn from the Eaft Point or Side, where the “ frelh Water falls into the fait, at High Water “ Mark,North North Weft,to the Line of theMaf- j “ fachufetts be the Weftern Bounds of the faid Co- j “ lony of Connecticut. And all Planta'ions lying \ “ Weft ward of that Creek and Line fo drawn, fhahi “ be under His Royal Highnefs’ Government, and ^ “ all the Plantations lying Eallward of that Creek j “ and Line, to be under the Government of Con- | “ neCticut.”—To which the Cwmmiflioners there- ] in mentioned, from ConneSici.it, fubferibed in the ; Words following, to wit. ‘ “ We underwritten, on Behalf of the Colony “ of Connecticut, have afiented unto the Deter- “ mination ©fhisMajefty’s Commiflioners, in Re- “ lation V • J ' la,tion tothe,Bqunds and Limits of his Royal f“ "Highnefs the Duke’s Patent, and the Patent 1 “ -of Connefticut.” 4 Col. Nicolh remained in the Adminiftration of 1 the Duke’s Government three Years, which was 'chiefly taken up in examining and fettlingthean- j tient Dutch Grants._ On the 30th June, 1673, j New-York and it’s Territories, was recovered by the Dutch, and their Government was again revi- j ved and’continued till 1674; on a Treaty of Peace ; fgned at Wcftminfler in February, the Englifh | Government was reftored ; and on the, 29th of * june^ 1674, his Royal-Highnefs the Duke of York f Obtained from the Ring a new Patent of the fame * Lands and Territories, in the fame Words with ‘ his former, before recited, differing only in the ; Date. . . At d Council held at -Fort James , in ■ New-Yori % i the %jd November, A. D. 1683, certain Articles ! were concluded upon between Col, ’Thomas Dungan^ then Governor of that Province, on one Side, and Robert Treat, Efo, Governor of the Colony, of Connec¬ ticut, Mcrj. Nathan Gold , Capt. John Allyn, Secreta¬ ry, and Mr. William Pitkin , in Ccmmiffion with him from Connecticut, on 'the other Side—Wherein it is a- r greed, that the Bounds, Meers , and Dividend between > HisRoyal Nigh'neff Territories,or Province in America^ £5? theCplony of Connecticut forever hereafter, (hail begin ‘at a eertainProok $rRiver,calt'edByramBrook or River, which is between theTowns o f Rye andGreenwich, at as Point called Lion's Point, the Eaflern Point of Byratk ' 'River,from thence togs as the River runs, to thePlac aj where the common Road orWadingPlace ever theRiver i 'is, and from thence to go North North Wed into the 1 Country, fp far as wilt be eight Englifh- Miles from the, aforefaid Lion’s Point: And (bat a Line of twelve i G l%]g i Miles being- meafured from faid Lion’s Point, according to the Line or general Courfe of the Sound Eaflward, where faid twelve Mile Line eudetb, another Line floall he run from the Sound eight Miles into the Coun¬ try, North North Wed ; andalfo that a fourth Line be nen, that h to fay, from the Nortkmod End of the Eight Mile Line, being the third Line mentioned, which fourth Line, with the find mentioned Line, floall be the Bounds where, they floall fall to run : And then, from the Eadward End of the fourth mentioned Line, a farallel Line to Hudfon's River, in every Place twen¬ ty Miles Didance therefrom, (ball be the Bounds there, between the faid Territories, or Pr evince of New scrk, and the faid Colony of Connecticut, fo far as CcnneCli- cuf Colony doth extend Northward, that is to the South Line of the Majjacbufetts Colony—only it is provided, that in Cafe the Line from Byram Brock's Mouth, North North Weft, eight Miles , and the Line that is to run twelve. Miles, to the End of the third ferementioned Line of Eight Miles, do diminifh or take away Land within twenty Miles of Hudfon's Ri¬ ver, that then fo much as is in Land dimimfhed of twenty Miles from Hudfon's River thereby, Dealt It r added out of ConneChcut Bounds unto the Line afere- : mentioned, parallel to Hudfon's River, and twenty ! Miles diftant from it, the Addition to be made tit fc ’whole Length of the faid parallel Line, end in flub | (Breadth as (hall make up Quantity for Quantity $ r what■ /hall be dimiriifhed as aforefaid — Survey- | srs to he appointed from each Government to run the * 'Aforementioned Lines and Bounds, between his Royal $ "Higbntfl's Grovernment of New-Tor k and the Colony | '•of Connecticut, to meet, at the Town of Stamford, on 1 the fir ft (Vednejday of October next, - And if it | 'pleafe the King's Majfjly, and his Royal Highnefs, to | accept end confirm tbefe Articles , they (hall be good to f all i I ' 7 . ( *9 ) Intents forever, between bis Royal Bigbncfs, bis 1 Heirs and Affigns , and the Corporation of Cemefticut, , : 7 and their SuceeJJjrs An adi?al Survey of the Lands and Places rnen- ■| tioned in the to regoing Agreement, was made, ;f and reported by the Surveyors and Commiftionera 5 appointed by each Party for that Purpofe, Qftober 7 loth, 1684-Nothing further was done there- ora, until an ex parte, Application fromNew-York, j 28th March, 1700.—At a Court at Kenfington, < King William in Council—Upon occafion .of Dif¬ ferences and Difputes between faid Province and ' Colony, relating to the Right of Government over I the Towns of Bedford and Rye lying on their Bor- ; ders, and determining that D.fference, and pre- ; venting all future Difputes about the divifion Line and Boundaries between faid Province and •Colony-His Majefly was pleafed to declare His Royal Approbation and Confirmation of the faid Agreement and Survey—Whereof the ref- peftive Governments of New-York and Connecti¬ cut, the Towns of Rye and Bedford, and all Per¬ sons whom it might Ccfhcern, were to take due iNotice and conform themfelves thereunto—fince which the Provifo in faid Agreement hath been bonftdered by faid Province and Colony, and an -allowance made to Netv-York, by Conne&icur, and a ftreighc Line fettled and agreed upon be¬ tween them, as a divifional Line, to which both Taid Province and Colony now conform themfelves icaordingly. The Honorable the Lords of Trade and Plan¬ tations, hot long before the 15th July 1680, fent a Number of Queries ts the Governor and Compa¬ ny of the Colony of Connefticut among which the -10th Query is-*« What are the Boundaries, L n- ' ‘ ■?' gitude s . ■ .( ? 0 ) M gitude, Latitude and Contents of Land within “ your Government ? &c.”-To which .Query, the Governor and Company on the 15th July 168® make Anfwer—“ Our Boundaries are exprefled “ in our Charter.” The fame Query has been frequently made fince that Time, and always an- fv/ered as above, except in one or two Inftances. On the 2&th February 168.1, ICing Charles Second by Elis Letters' Patent, gave and granted vjnto " Sir Wilham Perth his Heirs at)d Aftlgns— ‘‘ All that Traft or Parcel of Land in America,. “ with all the Inlands therein contained, as thd “ fame is bounded, on the Eaft of Delaware River, " from twelve' Miles Northward of Newcaftle “ Town, unto the three and fortieth Degree of “ Northern Latitude, if the faid River doth ex - “ tend fo far Northwards, then by faid River fo M far as it doth extend, and from the Head of faid “ River the Eaftern Bounds arc to be determined “ by a Meridian Line tobe drawn from the Head of the fafd River/unto the faid three and forti- “ eth Degree." The laid Lands to extend Weft- wards five Degrees in Longitude tobe comput- “ ed from the faid Eaftern Bounds-And the “ faid Lands to be bounded on the North by the “ beginning of the three and fortieth degree of “ Northern Latitude—And on the South by a ‘‘ Circle drawn at twelve Miles diftance from cf Newcaftle, Northwards and Weftwards unto the “ beginning cf the fortieth Degree of Northern “ Latitude, and then by a ftrait Line Weftward “ to the Limits of Longitude above mentioned. “ To Have, Hold, po/Tefs and enjoy unto the faid “ William Penn, his Heirs and Afligns, &c.” The Northern' Part of the Bounds and Limits of thifere recited Grant to Sir William Penn, Q ■ laps Japs on, or fpreads over fome Part of the Weftent jLands before granted and repeatedly confirmed to the Governor and Company of the Englifh Co¬ lony of Connedlicn t. I have now recited the moft materia! Grants and Tranfaftions, on which the Merits of the prefect Caufe depend—Some others pcflibly 1 (hall have occafion to Recite, in the Courfe of the Remarks, I fhall now make on the extent Confirudtion and legal Operation of thofe before recited,-The JSubjedts of the King of England, under his Coun¬ tenance and with his Permiffion, having dilcover- ed, and in behalf of the King their Mafler, enter¬ ed upon, and taken Pofieffion of, that Part of the Continent of America, lying between the 34® and 4.8° Degrees of Northern Latitude—King James the Firft divided the fame into two Colonies, cal¬ led the Southern or Virginia—and the Northern or New-Er.gland ; the latter he granted to the Council eflablifhed at Plymouth, who were incor¬ porated and known by the Name of the Council qi New-England, eftablifhed at Plymouth •, the "Bounds, Limits and Extent of New-England, ap¬ pear in the Grant before recited. The Council eftablifliedat Plyrrrouth, on the igthDayof March, 1631, under their Seal, and Hand of the Earl of Warwick, then Prefident of that Council, granted to Lord Say and'Seal, LordBrook.&c. their Heirs, Affigns and AlTociates forever, all that Traft of Land, bounded and defcribedin the Grant before recited; I fhall here'confider the Extent and ©pe- ration of thefe two Grants, efpecially that from the Earlof Warwick to Lord Say and Seal, &c. foe it mud be prefumed that the Grant from King james, to the Plymouth Council, was underllood to include what was graated by the Earlof War- ’ ' wick. wick, who is not to be fuppofed to have extend¬ ed his Grant out of, or beyond the Limits of th« Grant to that Council or Company. As to the Extent of the Earl of Warwick’s Grant to Lord Say and Seal, &c. it may be obferved, that the eaftern and weftern Bounds are fo explicitly point¬ ed out as to be too clear and plain to admit of any Doubt or Difpute. But as the Breadth, or Extent of the Grant North and South, or North¬ ward from the SeaCoaft, is not fo explicitly and clearly pointed out, that is to be collefted frem the Words in the Grant, and a fair Conftruftion of the Intent pf the Deed. By the Grant, the fe- veraf Rivers within the Limits aforefaid, by what- ever'Nameor Names they are called and known, are granted, and as the Rivers are granted, it miy juftly be concluded, and fully implied, that the Lands upon and between thofe Rivers were inclu¬ ded and intended to be within the Grant. Indeed, the Rivers.feem to be granted as Appurtenances to the.Lands *. And although the Giant of an Appurtenance doth not include the Premifies to •whichit appertains,.yet it may evidence 'theIn¬ tern bn of the Grant, with Refpeft to the Premif- fes imended to be granted; and to fuppole that ’by the Grant of thofe River*, was intended no more than the Mouths and Outlets of them into the Sea, allowing no Breadth of Land, or Length of Rivers back into the Country ; or to fuppc.fc the Rivers in their Length, ts be granted, arid that the Lands on and between them were not in¬ tended to be granted, would be manifehly abfurci, and dellr.uflive of the Grant itfelf, which the Law, hv.reafonable .Co-nftruftion, delights to fupport. Ut Res.magis valeat quam psreat, And therefore, • as it is tiwriijeft the.Gtant, according to a juft Cort- , - .ftrudlioa ftiwclion ©fit, includes a Breadth as well as Length} and by the Words in Breadth and Latitude, fome Breadth is intended, the Grant may juftly be un- derftood to extend in B.eadth and Latitude, from the Sea, or the foutherly .Part, to the northern Extenfton of thole Rivers unlefs by fome other Boundaries it fhill be limitted to a narrowed Breadth, which harpened to be the Cafe, by, the prior Grant to the Virginia Company On the South, and the prior Grant to the Mafi'achufetts Colony, on the North. That this Conftrii&ion is agreeable to the In¬ tention of the Grant in Queftion ; further appears, fey the Bounds in the Chatter to the Colony of Connefticut, dated 13th of Aptil, 1662 ■, which Bounds the Colony North on the fouth Line of ti)£ Maftachufetts •, which (hews how the Grant from the Earl ot Warwick was underftood in that Day. This Grant therefore, being limited on the eafterly Narraganfet Bay or River-, on the North by the fouth Line of the Maffachufeus, which ex¬ tended acrofs the Continent, and on the foutherly Side, by the Sea Coatt, as far as forty Leagues from Narraganfet River, and being to continue that Breadth throughout the main Lands—The juft Conftruftion appears to be, That the fame Breadth which the Giant contained at the End of forty Leagues, it is to hold the fame Breadth through its whole Extent* to the South Seas.—— As to the Operation of thefe Grants, it may be feid, That as the King, by the Difcovery of this Part of the Continent of America, and an aftual Entry on Part thereof, made by his Subjects, cla’ming the whole Country for their Sovereign, .became veiled with a Right and Title to fuch Parts as were found to be Vacuum Domkilium, or uninhabjted, i j • s uninhabited, both in Fee and Dominion ; and or fuch Parts of the newly difqovered Country, as were found inhabited or pofleffed by the native Claimers and Proprietors, the King became verted ’with a Right of P'urchafe preferablejio any other Prince or Stare, or what is called A.Right of Pre¬ emption ; So that by King James’s Grant to the Council of New-England eftablifbed at Plymouth^ that Company became VePe.ci with the lame Right both of Fee and Right of. Preemption in and un¬ to all the Lands, Soils, &c. within the limits of their Grant“fubjeft to the Provffo therein, as be¬ fore recited^—from Whence it follows that their 'Grants, vtfted tlvtir refpeftive Grantees, with the fame Right ef Property and Preemption, which before was in the-King~or that thole. Grantees refpedlively were Verted with all that the Crown had before the Grant, or could convey thereby, 'On the ground of the Provifo in laid Grant, and the Claim of the Dutch to have been poiTcfied of the Lands on Hudfon’s River, &c..the afore secit- Agreement, with the Dutch in 11650, was made,; and on that Claim and the after Conqueft of the Dutch, the Grant afore rtcited was made by King Charles to the Duke of York, which after¬ wards made it neceflary to afeertain the Bounds and Limits of the Patent to His Royal Highneis the Duke, and the Patent to the Governor and Company of the Colony of.Conneifticut... Under the Grant to Lord Say and Seal, &c. the inhabitants with the Limits thereof, proceeded to Purchafe of the Natives, Setrlt, and Cultivate their Lands, and extend their Plantatians and Improve¬ ments as before recited; till the Year 1662, when they made Application to King Charles the Se¬ cond, who on the 23d of April 1662, was graci- oufly pleafed to grant to them the Charter under which the-Colony now, and ever fince have go¬ verned, ordered and tranfafled their Affairs-- wherein and whereby, they are created and made t Body Corporate and Politic in Fad and 'Name, by the Name of Governor and Company of the Englifh Colony of Conneflicut, in New-England; in America, with ample Privileges and Powers of Legiflation and Government, on the Terms, Con- fiderations and Motives expreffed in the Preamble to faid Charter.- The People of this Colony being thus Incorporated and made capable -in Law to' Have, Take, Poffefs and Purchale Lands, Rights, Privileges, 8rc. and to grant, demife, alien and difpofe of the fame, and Being veiled with Au¬ thority and Power to order and manage the Af¬ fairs and Bufinefs of the Colony. The King in the latter Part of the Charter, renewed and con¬ firmed the Grant to the faid Governor and Com¬ pany, of their Lands aforefaid, in and by the Words hereinbefore recited. Upon the Extent . arid Operation of the Charter of King Charles the Second, to the Governor and Company of the Co¬ lony of Connecticut, u may be obferved, That therd appears to be fuch an Agreement in the Defcrip- tion or Limits bounding the Lands granted there¬ in, with thofe defcribing the Lands intended to be conveyed by the Council of Plymouth, to Lord Say and Seal, &c. that it can’t be doubted that r the fame Lands in Situation and Extent, were re- • ally intended to be granted in and by each of ' thofe refpedtive Grants. Theneeit follows, that ; where it happens that any Exprefiions found, in' one of thofe Grants, are attended with any Un- ; certainty; or there happens to-be any Omiffion' • in defcribing any particular Parts, thefame miy - ' "' ' D be ( 26 ; be properly explained or fupplied, by a more ex¬ plicit Defcription of fuch Parts in the other Grants. Such a Method ofconfidering Grants of Lands or Countries, made in thofe early Days, muft be a mod reafonable, juft and equitable Manner of judging.- For as in that Day no municipal Laws of the Country had been eftabliflied for regulating Grants and Conveyances, the Laws of natural E- quity muft be allowed to govern in thofe Cafes. If therefore the Intention and Underftanding of Grantors and Grantees, may fairly be collected from their particular Deeds, or from the Connexi¬ on they have with each other, a ConftruXion may be made agreable to the Minds of both Giver and Receiver, which conftitutes the Effence of a Grant and alfo Ihews the Meaning of it. Thus in the prefent Cafe, the Charter confirms and illuftrates the Conftruftion given of the Grant from the Council of Plymouth with Refpeft to the north Extention of that Grant. The Charter, it is plain, is predicated on a prior Purchafe made by the Colony, and fets forth, that the People claimed under fotne Grantor or Grant¬ ors, which doubtlefs refers to the Purchafe from, and their Claim under, the Plymouth Company:— Therefore, as the Charter bounds North on the Maffachufetts, fo it evidences the Grant from the Council of Plymouth was then underftood to ex¬ tend fo far North •, forafmuch as the Purchafe is ftippofed to be as extenfive as the Grant in the Charter. And on the other Hand, that Purchafe de&ribes the fouth Line of the Grant, more par¬ ticularly than the Charter, to wit. Forty Leagues on the SeaCoafts, from Narragar.fec River, and then to continue that Breadth to the South Seas, fo ic explains and illuftrates the Intention of the Charter ( 27 ) Charter with Regard to the fouthern Limits of the Grant. It is altogether improbable, that ei¬ ther the People of Connefticut intended to afk, or that the King intended to grant, beyond theBounds and Limits of the Purchafe referred to : And it is alfo to be prefumed, the Parties intended-to re^ queft, and that the King intended to grant, as ex- tenfive as the Limits af their Purehafe and Claim were. With Regard to the Intention and Opera¬ tion of the Charter, it appears, that manifeft Dif- tinftion is made and kept up, between the Grant of Power, Authority, Jurifdi&ion and Govern¬ ment, and the Grant of the Soil and the Property in the Lands. Jurifdidlion and Property are not ■only kept diftinft, and given and granted by dif- tinft Parts, and different Expreffions in the Char¬ ter, but they are in their Natures wholly different; and by no means imply or include each other, al¬ though the Powers of Government, and Right of Soil may be granted in one and the fame. Letters Patent; yet it muft be done by two diftinft Grants in the fame Inflrument, inafmuch as the Grant of One, doth not imply the Grant of the Other. The Jurifdiftion, or Power of Government may belong to One, and the Right of Soil within that Jurifdic- tion, may belong to the Others ; and this is more generally the Cafe. In the Confideration therefore, of the future Tranfa&ions relative to the Settle¬ ment of the Limits between the Duke of York’s Pacent,and thePatent to the Governor & Company of theColonyofConnefticut,it will be proper,care¬ fully to bbferve whether the fame refps&sSt affefks Jurifdi&ion, orProperty.or includes both of them ; —That the difeovery of a new Country, by the Subje&s of a Prince* vefts him as King, with that ( 2 § ) Right in Law, which accrues by fuch 'diftovery ; \t is alfo equally fo, with refpeft to what Right is gained by adtual entry upon inch new Difcovertes; and if the Country fo difcovered and entered up- pn, be uninhabited, the King becomes vefled with the Fee and Property, as well as with the Domini¬ on over the fatne, and the Subjects in order to hold the fame; are to hold it of the King as Lord Para¬ mount of the Fee. But if the new difcovered Coun¬ try be inhabited, the King in that Cafe becomes veiled only, with a Right of Preemption, to the inhabited Part, To fay the Native Inhabitants, though Barbarians, have no Right or Property in Lands more than the wild Jkafts of the Wildernefs, either becaufe they are Heathens, or becaufe they do not improve Lands, by Culture, Pafturage, Src. as mod civilized Nations do, is to deny them the elfential Rights of Men ; as neither Property or Dominion, are founded in Grace—The Earth is given by him who made it, to the Children of Men, without limitation to good or bad.—But fuch a Right of Preemption is acquired by difcovery, and entry as aforefaid, and according to the Law of Nature and Nations, it excludes the Claims ox Pretences of all foreign Princes.—That not only the Rights which the King hath in Fee and Do¬ minion, but alfo the Rights of Preemption are grantable and affignable to his Sybjefls thofe Purchafes that are made in Confequence of fuch pight of Preemption, are for the Benefit of the Subjed, and generally made by them-—nt necefia- jily follows—The King may Grant to his Subje&s the’ Privilege of making thofe Purchafes—This Matter or Point is verified by the general Praftice of all the American Colonies, who have claimed fhe Privilege of Purchafing from the Natives all. , ( 2 9 ') .. the unpurchafed Lands within the Limits of their Grants from the King relpedEvely. It is further to be obferved. That thofe Perfons whodilcover a Country or Purchafe any Part of rr, are intituled in Equity prior to any other Subjefts to have and receive a Grant and Confirmation from the King, and that when they or their Affigns obtain fuch Grant and Confirmation, they become veiled in Law as well as Equity, with a Title under him.— And therefore, when the King by the Royal Char¬ ter to the Governor and Company of the Colony of Connefticur, granted and confirmed to them all the Land?, Soils, Grounds, Havens, &c. he not only granted them the Property of thefe Lands, which were uninhabited, and thofe which the Grantees had fettled upon, and which they had before purchafed of the Native Claimers, but alfo a Right of Preemption to thofe Parts which were inhabited by the Natives, and had not then been purchafed of them ;—all that the King could Grant, was in that Cafe granted, and palled to the Grantees:—as when a Grant is made of the whole, when the Grantor is not feized of the whole, but only' of a Part, or of a certain Proportion of the Right, ail that which the Grantor hath in the Pie- mifes, pafies by his Grant—confequently the Go¬ vernor and Company aforefaid, were veiled with that Right of Preemption which the King before his Grant thereof was vefied with, and they appear to have been veiled with thr.tRovalty andPrivilege of Purchafe, which is mentioned and intended in Md by the Charter aforefaid, throughout the whole Limits and Extent thereof. That the Right of Preemption which thefaid Governor and Compa¬ ny were intituled to was not only irrevocable by the Graator, but alfo. exclufiveof all ether of the ( 3 ® ) King’s Subjefts. It is a Maxim in Law, that the King cannot refume his own Grant, without the Confent of the Grantee ; and as he cannot refume his Grant, fo neither can he refume any Part of it. And as he cannot refume, fo neither can he grant a Licence or Privilege to any other Subject or Subje&s, to purchafe thofe Lands of which he has before granted the Right of Preemption ; as that would be refuming his Grant, or an Attempt to that Purpofe ; or rather, it may be fuppofed a Nullity and Void in Law. If any Subjeft there¬ fore, other than he to whom the King has fully granted tbe Right and Preemption, fhall prefume to purchafe the native Right to Lands of which the Right of Pu chafe is before granted to the O- tber, thatSubjeft attempts implicitly to hold un¬ der a foreign Lord, in Oppofition to the Right of •his own Sovereign, and confequently, by fuch Ac¬ tion, virtually renounces his Allegiance. In that Cafe, he can have no Grant or Licence from the King, bequife the Right is not in the King to grant; and what ever Colour or Pretence fuch a •'Subje&may imagine, yet he can have no Right in Law or Equity, jo encroach upon and afl: mOp- pofuion to the prior Right of the Other, legally obtained and held of the King. From the foregoing Obfervations, it appears, that the Governor and Company of the Colony of D-nne&icur, were, by their Charter, veiled with • the Powers of Government, and confirmed in the Right of Soil, and Right of Preemption, to all the Lands within the Limits of their Grant; and /therefore it follows, that all the Right or Title - which even the King, or any Colony, Company, or other Subjedl hath or can from that Time have - to the Lands, or Right te purchafe Lands of the • Natives, Natives, within theLimitsor Boundsof theG'rant in faid Charter, muft be derived from and under the fame, fave only the Lands actually poffefied by the Dutch, which are faved by the Provifo in the Grant from the King •, arid that all Cla ; itiS within thole Lim ts in Oppofttion to the Right under the Charter, are and muft be deemed ille¬ gal and ineffectual, whether fuch Claims are made, on the one Part or the other of faid Grant—unlefs the fame have been by fubfequenc TranfaCtions either given up refigned, ieleafed or limitted, which I conceive has never been done. However, as great Pretences have been and are made of claiming the Fee cf thefe Lands which have fallen within the JurifdiCtion of New-York, and the Jurifdidion and Fee of the Lands Weft of that Province, within the Limits of the Charter to the Governor and Company of the Colony of Connecticut, in Confequence of the fubfequent TranfaCtions, refpeCting the Settlement of the Li¬ mits between , the Patent to the Duke of York, and the Patent to the Governor and Company of the Colony of Connecticut j it will be necefiary to take Notice of thofe feveral TranfaCtions, and make fome Obfervations upon them. About two Years after the Date of the Connec¬ ticut Charter, to wit, on the mh of March 1664, King Charles the Second, by Letters Patent of that Date, granted to his Royal Brother James Duke of York, certainLands in America, defcribed as in the Grant herein before recited—and by the fame Let¬ ters Patent the King granted to the Duke, the Ju- rifdiCtion and Powers of Government over the Lands contained in his Grant. With Regard to the Patent it may be obferved, That f© far as the Grant to the Duke of York lap¬ ped ( 3 2 - ) ped on, or interfered with the Grant to Connecti¬ cut it could take no effeCt, as the Lands or Pro¬ perty of them was not in the King, but in the Go¬ vernor and Company of tlae Colony of Connecti¬ cut, when the Duke’s Grant was made. And al¬ though Bounds were given to the Duke’s Grant which interfered with the Bounds given in the Connecticut Grant, yet in Conltru'ction of Law, the Duke’s Grant mult be eonfidered, as only ex¬ tending to the Bounds of Connecticut Grant,‘and bounding by it.—Thar all the Duke could in Lavi or Equity Claim, by Force of his Grants, that re¬ lates to the prefent Cafe, was the Lands that the Dutch claimed to have been pcficfied'ef on and near Htidfon’s River, within the Limits of the Connecticut Grant, before the Grant made by King James, to the Council eltablilbed at Ply¬ mouth, and which was faved and Excepted out of that Granrj and that was all he became veiled with a title to, by the lutrendery of the Dutch, and as their Surrender, extended no farther than their PolTeSions, it included no . Part of Connecticut Lands, and fo. the Duke’s Poffedion could extend np further than to the Connecticut Grant.——The Dutclvbeing conquered and having bn the 27th of Augult. 1664, furrendered all the Lands they had been poffefied of within the Limits of the Grant to.the.Colony of Connecticut, on and near Hudfon’s River contained, in the Provifo afore¬ mentioned, and the Duke of York thereby becom¬ ing veiled therewith, it became neceffary that the Bounds and Limits of the Dutch Pofieffions fo far as they. refpeCled the Connecticut Grant, friould be fettled "and afccrtained—and thereupon, and on 1 that Ground'only I conceive, Col. Nichols, &c. His Majefty’s Commiffuners afore-nanied, took ■ v ■ I. 33 J .4, tip the Matter, and on the 30th of Nov. 16S44' declared and determined thereon in Manner is before recited, and the Governor and Com : tniffioners for Connecticut a (Ten ted thereto a$ aforefaid. * *• M By thofe Proceedings and' Determinations, it Appears that the Lines of JurifdiCtioB and Go¬ vernment, io far.as they refpefted the Boundsapd Limits of the Dukes Patent, and the Patent to Connecticut, only were .fixed and limited. If it be confidered that the Words made Ufe of ip the Declaration refpeCt Jurifdidtioh .only, viz. “ /lU “ Plantations lying Weftvyard of that- Creek and? “ Line, to be finder the Duke’s Government, and “ all Plantations lying feaftward of that Creek and u Line, v to Be findfer the Government of Cennec- " ticut.” Nothing concerning the SoiliBd Pro¬ perty in Lands is fo much as mentioned j ana therefore, although the Duke’s jurifdiCtion was fey that Deterifiinatioh/ekt'ended farther Eaftward than die Dutch Claims, it ffiight be confident with the property’s reihainihg where or ia thofe id &hom it was Before vefted.—As to havfe the Go¬ vernment over the Plantations or Towns; ahd to have or own the Property of the Lands in them* Sre diftinCt Ideas v And as Government is onljr irk this Cafe mentioned, it is plain things bf Go¬ vernment only affeCted of intended to be fixed; That thofe Commiffioners neither had or. could have by their Commifiton, authority to determine or affix Lines, Extents, or Rights of Property.-^ It has been before obferved the King cannot re¬ fund his own Grant* and as that appears not to be in the Power of the King, fo neither is it agreeable to theConftitution for the King ini foirimaryMan- • ' • E - - ■ nif ner to appoint Commiffioners to deteimir.e tb& Property of his Subjects; therefore the King did not think proper to impower, or even to attempt impowering them for that Purpofe. It would have been even more difhonorable to thtCrown to have cofnmiffioned the Duke’s Governor for fucha Pur- pefe, than an indifferent Perfon, and as he is the Principal in thatCommiffion, it i&to be prefumed in Honour to the King, that-there was no Inten¬ tion to authorife the Commiffioners to fix or deter¬ mine the Right of Soil. Confequently if the Commiffioners had intended to include and lim't Property with JurifdiCtion, they would have ex¬ ceeded their Commiffion, and their Doings fo far muff have been Void.-Perhaps it will be ob¬ jected—That the King’s Comm'ffioRers, and the Governor and Comm ffioners of Connecticut, un- derftood, that Determination refpefled and 1 mited Property and JarifdiCtion, and that the Lands Weftward of that Creek and L : ne. fhculd belong to and be the Property of the Duke, as well as, that the Plantations thereon fhould be under his Government—and that, with thac underftanding, the Governor and Commiffioners from Connecti¬ cut confented thereto—and that when :t-he Grantee conftnts, the King may re^affume or limit his .Grant, &c.'— as no injury can be done-to the wil¬ ting- Mind.--To which I< Anfwer—That al¬ though it be true they figmfied their Gonfent to what was done, or faid to be ordered and declared •, jyctthey confented to nothing more than what finty comprehended and included in the Dctcr- miiiation. and as there are no Words ufed there'n which include the Right of Soil, fo that Confent pan'net be understood to be a Confent to give up ■fcr limit the Property in Lands-—and although it be allowed, the meaning and intention of the Par' ties to an Inftrument, fo far as they appear by the Writing itfelf, ought to take Place, if confident with Law—yet any fuppos’d intention or under- flanding which doth not appear by the Writing they have executed, can be of no avail in Law or Equity ; and as no fuch under-ftanding doth ap¬ pear from the Face of the Determination, nothing can be argued therefrom ftronger than what a meer extraneous imagination will fupport.—The Words ufed import no fuch undemanding or fenfe, unlefs it be fuppofed, that in thofe times it was the general Senfe and Opinion, that Property and Jurifdiflion were infcperable, and that the Parties concerned underftood the Matter in that Light—But this was not the Opinion of that Day, the refpcdive Patents fhew the contrary—and if it fhould even be allowed that fome Men, were of that Opinion, and that the Commiffioners were of that Number, that would not alter the Cafe, it would be very abfurd to plead a vulgar Error, as that mud be, ; if. fupport of a Conftru&ion againft Law. Further, it nd way follows, the event or ef- fe£t would be according to their Opinion, as a Miftake in their.Judgment, about the future Con- flruftion of their Writings no ways alters the Cafe ; but a Judgment is to be made according to what appears from the Words they thought proper to exprefs their meaning by ; thefe are the proper Evidences of what they did and what they intended. What the underftanding of this Matter has finee been, and how it has been confidered will ap¬ pear from the fubfequent Tranfattions between the two Governments of New-York and Connec- ' iticut, r 3$ .) ticut. From tbofe Tratifaftions as before recited it appears that nineteen Years after the Agreement in 1664, and after the D.utch had re-taken and rq- furrendergd their Poffeftions—A new Agreement w^s come into between the two Gbvernments of New-York and Connecticut in 1^3, which A- greement was made, by Rea'fon of its; being infill¬ ed on the F»art of the Pukp of York, that therq had been an Error in the-Agreement of 1664—- ind the Colony.of Connecticut though they were fenfible ; of no Error, yet confentcd thereto, that they might PJeafe, arid be on good Terms with the Duke, of York, theh’too powerful an Advcrfa* iy, for an infant Colony to contend with, as he was then Prime Minifter and Heir Apparently $e Crown. Confidering hinvthqrefore,- in fuch an exalted Station and Power, as well as the arbitrary Principles of the Mari, and the then Times, tho’t ft more expedient to be complaifaht Supplicants,, than to appear as refolutq pifpritams 1 in fupport. of their Righti. They accordingly inftruCted; their CommiffipnerS-'to prevail -with Governor pungan to take up with as Httle of their Govern¬ ment as might be, arid back, their Reaforis with in treaties •, and if they'did give trp the Jurifdidi* on, as far ks Griverripr Dutagan demanded, to Wit, to twenty Miips Raft ofHudfon’s River, yet that; they Ihou.ld favc the Fcc and Property of the Lands—rupon thofe corifidcr^tions the Agreement of 1 683, ,was made and come into, on the Part of the Colony ofCbnneCticut. Here it may be ob- ferved,.that ari Agreement come into by one Par. ty, under fuch Circumstances, ought to be con- Arufted ai much in Favour of that Party as may jj^ifnotconfidered as Void as.to him ; however. she Agreement being come into as aforefaid, th$ Condition annexed theretd, to wit, “ if the King and .his Royal Highnefs fhould be pleafed'to “ accept atfd ratify it, then it fhould be good, &c. n implies as ftrong as if it had been exprefied, that if the King and the Duke were not pleafed to ac* cept and ratify it, then it fliouid not be good,.but Void, and (u.eh acceptance never was or has been had or made—had it been ratified as wasexpefted, it would have fettled all Difpute between the two Governments, and fully anfwered the defign of Connefticut in coming into it, on their Part- Rut as it never was done, Connefticut, on the De- fnife of the King and. the Duke’s being King with* but any acceptance 'or ratification, well knowing after thofe Events, the Condition aforefaid sot Only would not but could not be performed, ic could not take Effect,, they as they juftly might, claimed and exerted their jurrfdiftion as before, and continued the fame, until the Year 1700* whenfaew-York made an ex peite Application to; the King, for an interpofuion of the Royal Autho* rityf by a ratification of that Agreement and Sur* vey, and thereupon. King William in Council,, made a Determinationrhereon, as before recited. Here it rriay be obferved on the laft mentioned Agreement, and on the Confirmation thereof* That the faid Agreement relates exprefly, only to the Bounds, Meers and Dividend, between the Duke’s Patent and the Patent to Connefticut—. find that,'as the occafion of that Confirmation, was the. Difference and Difputc about the Right of Government over the Towns of Rye and Bedford, & the manifeft Interftibn of the Determination ap- gears to be for terminating the Difference, and . > preventing ( . 3 * ) 'preventing future-Pilputes about the Line of Go¬ vernment, and as that Confirmation referred to, and was predicated upon them and nothing elfe, ifcould.extend no farther than to what refpefted ^urifdiftion and Government, and which only feems to be in Difpute—But if it Ihould even be fu.ppofed, the intention of the King was that his Approbation and. Confirmation fliould extend to, ■ and refpeft Property -as well as Righc of Govern¬ ment, it could not operate to fuch Purpofe ; the Right of.Soil was wholly palled fron-i the King be¬ fore,-and was either in Conneftieut or had revert¬ ed to the Crown by the Acceffion of the Duke of York. If therefore the Property was in Connefti- cut, the King could not by that-Aft of a fuppofed Confirmation, reveft the King with it ; and if it was in- the King already, that Aft mull be fruit- iefs and vain, as it could’ operate to no Purpofe in Law,-relating to the Right of Soil, or Property in the Lands; the Confirmation therefore could ref¬ peft nothing but Right of Government, whether the Agreement was more or lefs extenfive or not. The Royal Pleaiure fignified as atoiefaid, could by fio Rules- of Law, operate as a Confirmation of the Ag-reement and Survey to which it refers in any proper.Senfc of a Confirmation in Law-—It is evL dentthe Conditions in the Agreement for Reafons already offered, refpefted the King’s Majefty and the Duke' of York’s acceptance and ratification, fhat Government then being a proprietary Go¬ vernment, buc after it came to be a kingly Go¬ vernment, the Reafons or Caufe* of the Agree¬ ment were removed ;—it was not made to depend bn the Acceptance of any future Thing—and after the Change ofG uvernment as aforefaid, efpecially ■ when ■ ■ ( 3'9 J . . when one' of the Parties, to wit,- rffe Proprietary (Governor ceafed to exifiythe Kang by the Pleni¬ tude of his Sovereign Power, waSpleafed to Order a]l concerned to take Notice of it and conform thereunto. This Language would have been al¬ together improper to Proprietors of Lands, ref- pefting the Property of their Lands, &e. Fur¬ ther, as the Lines mentioned in this Agreement, and. eftablifhed in 170Q, weie not run out, and as iqning them exa&ly conformable to the Terms of that Agreement was very difficult and inconveni¬ ent; Commiffioners were therefore appointed from each Government, who in 1725, came into another Agreement, wherein it was concluded, that be- fjde fpme other fmall Variations, a ftraight Line fhould be run, inftead of a parallelLine toHudfon’s River, and be deemed the parrallel Line intend¬ ed •, which, ftrait Line fhould be at each End twen¬ ty Miles from faid River ; -^-they alfo agreed upon, the Equivalent mentioned in the Agreement, and: in 173 r the Comm flf tners from the two Govern¬ ments, run thofe Lines and meafured off the E- quivalent; and when that was done the CbmtnifTL oners from, New-York, thought it Ne.ceffary not only to have thofe Lands, put under the Jtirjf diction and Government of the Province of New* York, but a]fo to have a Surrender to the King, of the Right of Soil and Fee of the Lands ; there by to re veft the King with the Property of the Lands, that he might be able to Grant them, to thofe who had petitioned for a Grant of them; when, or as foon as they belonged to the King to Grant. From all the foregoing Matters refprdt- ing the Settlement of the Bounds, Limits, Meets and Dividend between the two Governments of New- 4 .. •• • A J . • itfew-York and Connecticut, and by, this Method of concluding that-Affair, it appears—That the Commiffioners underftood, that giving up Rights of jurifdtffion by fixing a dividend Line, did not transfer Property--and of this bpinion were the principal Gentlemen of Knowledge in the Law in Connecticut and New-York at that Day. However* they took a Deed.of furrtndery only of the Equivalent Lands*, and left all other Lands, within the Connecticut Charter, and under'the jurifdiftion of that Province, determinable, as to their Property,, by the Rujes of Law* and thole that were never actually poffeffed or granted by the Dutch, are holden by that Title to this Daly. Xhefe laft Proceedings of the Commifiioners im¬ plicitly give, the farfie ConftruCtion to all the fore¬ going TranfaCtidris, is argued for in the fever*! foregoing Oblervations upon the®. Perhaps* to avoid, the foregoing bbferv'Ction;, it will be objected, That by thdfk Words in the Determination in 1664-^After fi?;ing the Creek aforefiid* for the Bounds at or near the . Sound, or Sea, it is faid, “ and a Line drawn from the Eafi Point or Side, whi~e t'befrefh Water falls into tbi /alt, at High Wafer Mari, Worth' North. Weft, to • the Lint of ihe Majfjachufetis, be the WefterA BbttMi of the Colony of Conne£licut"~Qa afrertain ind fix tfie Extents of the Connecticut Charter* ..both as to Property and JuriftiiCtioh, as the Word Colony, implies both* and wher.fe the Colony is li¬ mited, there both Rights are . alfo limited : And as a Grant of the Whple Extent of Country, con¬ tained in the Charter,.was both extravagant, and ye6 uncertain, as to the Operation ot it on the Wait* lb k was bi)t jud. and reafonablp it ftiould ‘ bS be explained and reduced to a reafonable Ex* tent-, and this the Corrimiffioners, did, ansi have expreffed themfelves to thatPurpofc, by fay¬ ing that Creek and Line Ihouldbe the Weftem Bounds of the Colony of Connecticut.—To which I anfwer, That the Word Colony doth not com¬ prehend or imply Lands any otherwife than as Lands may be granted for a Colony, or there muft be Lands for a Colony to fettle upon. The Word Colony imports a Number of People fettled upon; I^ands diftant from the main Body of the Commu-. hity—It is the People, who go out of one Country; to dwell in another; accordingly the King’s Sub-i jefts who dwelt in Connecticut before the Charter were called in the Charter itfelf, the Colony of Connecticutand thofe who at the Tithe of the Charter were the Settlers-and Inhabitants there* were by that Charter incorporated and vetted, with Powers of JurifdiCtion and Government, and Ail¬ ed Governor and Company of the Englifh Colony, of Connecticut—and thereby they were vetted by Royal Authority to exercife Government through-; out the Extent of their Grant of Lands, and tbaC Power might be extended as far as they extended their Colony by Planting and Settling the Land* they claimed—What uncertainty is to be found in' the Limits of the Grant of Property, to the Colo¬ ny of Connecticut ? Surely none—for Id Cerium eft, quod Cerium reddi potejl .—It hath already been' ihewn, that the Boundaries of the Grant in the Connecticut Charter are intelligible, and may ea- Cly be fo explained as to be Clear and Plain; and that all that can be objected thereto relate only to the Operation of the Grant which has alfo been' explained, and thereby fuck obje&ons have been' F obviated ( 42 ) obviated. And as to the Pretence of the extra¬ vagancy of the Grant it may be obferved, as has been before hinted--That the Confiderations cf the.Gwint mentioned in the Charter abundantly fhew the reafonablenefs of fo liberal a Grant, and that it is Plain the King knew he made a Grant of Lands, itnore extenfive than the Colony at that Time was or.Xoon would be, and that it was fully his Royal Intention, fo to do.-r—It may alfo be fur¬ ther obferved that the Grant has never been called in Queftion by Scirefacias, or any other legal Manner, on account of the ex-tenfivenefs of its Li¬ mits, nor indeed ' on any account whatfoever •, which muft be done, and a legal Determination thereon ought to be had, before any erne hath the Right to fay it is to be limited fhort of the given Boundaries—NoMan.ha> a Right to fay the Extent of theGrant fhall be here or there & no farther.be- caule as he imagines theKing has granted too much. The Grant therefore to the Governor and Compa¬ ny of the Colony of Connefticut, muft, as to Pro¬ perty, be confidered to be and remain whole and entire, and that what and where it is, and where it extendeth, is deferibed with fufficient certainty. T.har,. as the Duke of York, and the Colony of Conne&icut were the only Parties to the Deter¬ mination made. in i fr&g-^and that Determination of the Commiflioners,' and the AfTent of the Go¬ vernor and Commiflioners of Corinedticut thereto, refpefted ;only, that Difpute which might arife or was then ifupppfed to fubfift between thofe two 1 Governments ; therefore jc would*, not affeft either tf\c Rights of Government or Property, vefted in tlje Colony of Co.'.nefticut, further than the Dike’s Government extended,—The King no.c * being Party to that Determination cannot be bound, or take Advantage thereby—Parties and Privies in Eftate only, can regularly be bound or take Advantage by Eftoppels.—To extend the Operation of that Determination further, would be to extend it beyond their Commiffion, and even beyond their plain Meaning therein, and againfr, the conftant and continued undemanding thereof, from that Time down to the final Settlement of the Bounds, Meers, and Dividend, between the tvvoGovernments.as fully'appears from all theTrani- aCtions between them, and the Confirmation by the King thereon ; as herein before recited and cb- : ferved upon, and would be extending the Doc^ trine of Eftoppels, never favoured, much ; more extended, to a Degree beyond what ever was, or e\rcr will, or can be admitted, by any ; Ru!es of Law or Equity—So that, as the Property to all the Lands contained in andfconVeyed by the-Grant made by King James to the Council eltabliflied at Plymouth, are well veiled in, and by the Charter confirmed to, the Colony of Connecticut, with afnple Powers of JurifdiCtion and Government over the fame-And thofe excepted out of King James’s Gr.ant by the Provifo contained therein, are all that the Duke of Yor.k can take by Force of his Grant from King Charles the Second, that refpefts Connecticut; and as that is the only mat¬ ter about which the faid Determination is Convcr- fanf, fo the weftern Bounds and Limits of the Colony of Connecticut, as exprtfied therein, nutft beconftrued to extend, to the Weftern Bounds, thereof with refpeCt to New-York only—and therefore all the Rights of Property in the Lards -and JurifdiCtion over the fame, as contained in the Grant Grant and Charter to Connefticut, beyond the Duke's Territories, mud be fuppofcd to remain untouched and unaffected thereby.--The Eaft- ern Bounds, Limits, and Dividend of the Duke’s Territories, with Refpeft to Conne&icur, arc now fully fettled the Weftern Limits thereof, with refpedt to Conncfticut’s Grant, now remain, in Stalu quo Prius, as they were left, and as, expreffed ip the Agreement with the Dutch in 1650. - If Length., of Tjrne without continual Claims fey the .Colony of Connecticut, fhould be objefted -The Q^ery. from the Lords of Trade and Plantations, and the , Anfwer thereto, as. herein before recited, with the frequent repetition .there- ■ of by them, and as frequent fimilar Anfwer given thereto by the Colony, I conceive will be a fufiici- ent Anfwer to fuch objection.——While the Land remains in.the .Ppffefliqn of the Indians the fir ft Oc- cupfetsj’ the Authority qf the Colony of Connecti¬ cut have no.JurifdiCtion ot Government over them ■—The Right of Preemption being all the King had to Give and Grant to his Subjects of Connec¬ ticut therein.-—So foon as. the Indian Occupiers were willing tq fell and remove fjpm the Lapds, the People of Connecticut, before any others, by and with Allowance fr.omthe Authority here, did, bona jidSy purchafe Part of the Lands .within the Connecticut Charter,Weft^pf the Province qf New- York of the Indians, and are now extending their Settlement? and Improvements thereon. If it fhould be objeCted-r-That the Opinion, already had, of one of. the greateft Lawyers, as well as greateft Men in the Nation, is againft me— With all Deference to his fuperior Abilities, 1 beg leave, to fay, That I conceive that Opinion was given pn the Ground of fuchExhibits, andReprefentation §$ Fadts, in the Cafe as Mr. Penn, wh® afked thsi Opinion, was pleafed to furnifh him with—In thg State on which that Opinion is given, it is laid**? With RefpeEi to the prefent Difpute, the Weflew “ Boundary of Connefticut was barred at the Tim $f “ -the Original Grant, by the Dutch Settlement j mi “ the Crown were deceived, when they were prevailed “ upon to convey a Territory, which belonged to cm- “ fher State, then in Amity with the Crown tf £sg* “ land ; btfides this ObjeSlioh, the Settlement of the “ new Boundary tinder the King’s Cmmijfwn, in 1664? “ And what is Jill flronger, the new Line marked sit “ by Agreement between this Province and New-Tark, “ has now conclvfively precluded Connecticut from ad" “ vancing one Foot beyond theft Limits.” --Fro® this recital, I think it is evident* his Lordfliipw*# siot furriilhed with the Qranttnade by King James to the Council eftablifhed at Plymouth, or any ther of the Grants and Conveyances, ant cikdent to the Charter to Connre&icut in 1662, and there- fore did not confider them, in the Ligh t they ought to bp confidefed •, which I conceive would have ^entirely remoyed, his;^bjedfion, that the Original Grant was* barred by the Dutch Settlement, for that Settlement i$ exprefly excepted out of the Grant—And as theWanthf thofe Exhibits dothal- fo materially affeft the other Objeftion, with Ref- pe£t to the Settlement with New-York—I con¬ ceive, that it may fairly be concluded, his Lord- fhip’s Opinion would have been very different, had he been furnifhed with all theExhibits materi¬ al in the Cafe, to found an Opinion on. ' ^ Upon the Whole then it appears—that the< 5 o- vernor and Company of the Colony of Connect ebt; were by their Charter veiled with the Poweri of Government, and confirmed in the Right of Soil and Right of Preemption, to all the Lands tvithin the Limits of their Grant* find the fame have been nootherwife* given up, refigned, releaf- fed or limited, by the Proceedings,' Agreements, Determinations and Conclufions before mentioned, than as the lame refjpeCt the Bounds Limits and Dividend* between the Patent to the Duke of York, and the Patent to the Colony of Connec¬ ticut-—-And that the Right and Title of the Colohy of Connecticut, to the Lahds, within thfe Limits of their Grant, lying Weft of the Province of New-York, is good and valid-And that they have good Right, -to extend their Pofiefilons, Improvements and JurifdrCtion thee-‘And as the King cannot fe refumfe his own Grant or any Part thereof •, confeejuently, if any Grants have fine'e been obtained from the King by Mr. Penn Or others, of Lands within the Limits and Exten¬ sion of the Grant to CsnneCtieut, the fame are and rmift be to all intents and purpofes Null and Void. I have now gone through the Exhibits and Ob* fervations thereon* on whictafl ground my Opini¬ on* That the Claim of the Governor andCompany Of the Colony of Connecticut, to the Lands with¬ in the Latitudes expreffed in their former and re¬ newed Charter, lying Weft of King Charles the Second’s Patent and Charter tothe Duke of York* trow called the Province of New-York, is good find valid.-In the Courfe thereof, I have taken the Liberty to ufe many very judicious Obfervati- 6ns of an honorable Gentleman, in this Colony, tybdfe .abilities are acknowledged by all, in a v . . Manufcripe Manufeipt of hi:- which I imagine you have neref feeo, and which I acknowledge myfelf much in¬ debted to that honorable Gentleman for. I fyti- tnit the whole to your candid Examination, -f And Am, Sir, ":I - Your moft obedient, -•sH humble ServenE, ConnePicut, Jfril Sib, 1773. " ** * # w- * V*" 1 * if % 4