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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --TUESDAY, AUGUST 20, 1782
The committee, consisting of Mr. [Daniel] Carroll, Mr. [Edmund] Randolph and Mr. [Joseph] Montgomery, to whom was referred the report of a committee on instructions to the delegates of Massachusetts, relative to the fisheries having reported, "that the facts and observations collected by the committee, be referred to the Secretary for foreign affairs to be by him digested, completed, and transmitted to the ministers plenipotentiary of the United States for negotiating a treaty of peace."
The Committee to whom was referred the Report of a Committee to whom was referred the instruction to the Delegates of Massachusetts Bay have collected the facts and observations herewith reported to Congress, which they recommend to be referred to the Secretary for Foreign Affairs to be by him digested, completed and transmitted to the Ministers Plenipotentiary for negotiating peace for their information and use.1
[Note 1: 1 This paragraph, in the writing of James Madison, is in the Papers of the Continental Congress, No. 20, I, folio 87.]
On the 17th of November, 1781, the delegates for Massachusetts laid before Congress the following act of the legislature of that State.
"Commonwealth of Massachusetts,
"Oct. 27, 1781.
"It appearing to this court of the highest importance to the United States in general, and to this State in particular, that the right to the fisheries heretofore enjoyed by the subjects of the United States, should in a future settlement of peace be acknowledged and secured to them: Therefore,
"Resolved, That the delegates in Congress for this Commonwealth be and they are hereby instructed, to represent to Congress the importance of the fisheries to this State, and to use their utmost influence that instructions be given to the ministers appointed by Congress
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for negotiating a peace, in the most pressing manner to insist, that the free and unmolested exercise of this right be continued and secured to the subjects of the United States of America, in a future settlement of peace.
"And it is further resolved, That the secretary be and he is hereby directed, to forward the aforegoing resolve without delay to the delegates in Congress for this Commonwealth."
The aforegoing, together with sundry papers relative to the fisheries, was referred to a committee, consisting of Mr. [James] Lovell, Mr. [Daniel] Carroll and Mr. [James] Madison, who on the 8th January, 1782, reported as follows:
The committee to whom were referred the several papers relating to the fisheries have duly considered the same, and are of opinion, that the best security for this object, short of admitting it into the ultimatum for peace, will be a representation to his Most Christian Majesty, through our ministers for negotiating peace, of its great importance to the United States, and of the grounds upon which it is claimed and expected; and being also of opinion that a like representation touching the other claims of the United States excluded from the ultimatum would have a tendency no less salutary, they have prepared instructions to the said ministers in this comprehensive plan, and report the same as follows for the consideration of Congress:
That the ministers plenipotentiary for negotiating peace, or in case they should not be convened, the minister plenipotentiary at the Court of Versailles, be instructed to acquaint his Most Christian Majesty, that notwithstanding the occasion presented to the United States, by the signal and various advantages gained over the enemy, of enlarging their ultimatum for peace, the firm reliance which Congress have on the friendship
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and influence of his Majesty has determined them not to depart from their resolution of theday oflast, by which all the objects of their desires and expectations, excepting only the independence of the United States and their alliance with his Majesty, are eventually submitted to his councils. But that in order to make him more fully sensible of the extent and foundation of these desires and expectations, have thought it expedient that some observations should be made to him relative to the several objects which are most likely to fall within the compass of negotiation.
One of these objects, and which is intimately connected with the independence of the United States, is the exterior boundary by which their extent is to be defined. On this occasion it is to be observed, that our contest will be with his Britannick Majesty alone. Under his authority the limits of these states, while in the character of colonies, were established; to these limits the United States, considered as independent sovereignties, have succeeded. Whatsoever territorial rights, therefore, belonged to them before the Revolution, were necessarily devolved upon them at the era of independence.
Those grounds support the assertion, that the United States are bounded as they are declared to be in the instructions given to Mr. Adams on theday of August, 1779.
As the efforts of his Britannick Majesty will be principally directed against the western and northwestern boundary, the observations on this subject may be confined thereto.
The treaty of Paris of 1763, to which his Most Christian Majesty and the British king were parties, restricted those colonies, which were before extended by their charters to the sea, to the river Mississippi.
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To this river then these states will still extend in the same manner, unless by some subsequent constitutional and rightful act their limits have been abridged.
The negotiations on this head will probably assume a variety of forms. None perhaps will be more strenuously urged than those which arise from his Britannick Majesty's proclamation on the 7th day of October, 1763, the treaty of Fort Stanwix, in 1768, between him and the Six Nations, and the British statute in 1774, establishing, among other things, the boundaries of Quebec.
1. If it can be supposed that the purpose of the proclamation was to affect the boundaries of the United States, it must be remembered to be the act of the very prince against whom we contend; that it preceded, a short time only, the manifestation of those wicked and oppressive measures which gave birth to the Revolution; and that it directly interfered with the rights accruing to the colonies by the ancient and more solemn acts of his predecessors.
But by the prohibition to the governours of the other colonies than of Quebec, East Florida, or West Florida, to grant warrants of survey, or pass patents "for the present, and until his (the British king's) farther pleasure should be known," for any lands beyond the heads or sources of any of the rivers, which fall into the Atlantick ocean from the west and northwest, is strongly shown an opinion that there were lands beyond the heads of those rivers within the grants of the governours.
By the prohibition too to grant warrants of survey, or pass patents for any lands whatever, which, "not having been ceded to or purchased by the British king, were reserved to the Indians, or any of them," a restriction of territory could not have been designed by a king, who granted the charters to the colonies, knowing that they would interfere with the rights of the Indians, who
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has always considered a cession, or purchase from the Indians, not so much the source of a title as a milder means of preventing their hostility, who, since the date of the proclamation, has granted through the prohibited governours themselves large quantities of land beyond the heads of those rivers, and whose own geographer, in a map describing and distinguishing the British, Spanish and French dominions in America, according to the aforesaid treaty of Paris, carries the states of Georgia, North Carolina, South Carolina and Virginia, as far as the Mississippi.
In a word, this part of the proclamation seems to have been intended merely to shut up the land offices, not to curtail limits; to keep the Indians in peace, not to relinquish the rights accruing under the charters, and particularly that of pre-emption.
2. The treaty of Fort Stanwix is susceptible of a similar answer, by viewing it as an instrument of peace, not the conveyance of a title. For there is reason to believe, that the British king has never ratified it; and yet it is notorious that his governours have granted lands within the cession then made.
If it be said that the authority to grant those lands was derived from the treaty of Lancaster, in 1744, here then is a forcible illustration of our doctrine. For on what principle, but on account of peace, could the British king have attempted to procure a new cession of the same country? On the other hand, if the authority to grant those lands was not derived from the treaty of Lancaster, it can rest on no other foundation than that of his charters.
3. The Quebec act is one of the multiplied causes of our opposition, and finally of the Revolution. No stress, therefore, ought to be laid on it, even if in its operation it abridged the boundaries of the states. But the provision
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that nothing therein contained relative to the boundary of the province of Quebec should in any wise affect the boundaries of any other colony, excludes such an operation, and confirms chartered rights.
Should Great Britain retain that portion of the United States bordering on the Mississippi, the neighbourhood of her possessions will be imminently dangerous to our peace. Should she also retain Canada and West Florida, or even Canada alone, by applying herself to the settlement of that country, and pushing on her trade there with vigour, a new nursery for her marine will speedily be established.
From a full confidence that the western territory now contended for lay within the United States, the British posts therein have been reduced by our citizens, and American government is now exercised within the same; large bounties of land have been promised to the army; and we have relied on it as an important source for discharging the debts incurred during the war.
For a considerable distance beyond the Apalachian mountains, and particularly on the Ohio, American citizens are actually settled at this day. By the surrender therefore of the western territory to Great Britain, a large number of fencible men, men too who have not been behind any of their fellow citizens in the struggle for liberty, would be thrown back within her power.
But a decisive objection exists against this mutilation of our country, that the principle by which it would be limited to the distance of a mile only from the Mississippi, would justify mutilations to an immense extent.
Another object in which these states are not less interested is their common right of fishing in the North American seas and particularly on the banks of Newfoundland. With respect to this claim of the United States the said ministers are instructed
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Another claim is the common right of the United States to take fish in the North American seas, and particularly on the banks of Newfoundland. With respect to this object, the said ministers are instructed to consider and contend for it, as described in the instructions relative to a treaty of commerce, given to John Adams on the twenty-ninth of September, 1779, as equally desired and expected by Congress with any of the other claims not made ultimata in the instructions given to the ministers plenipotentiary for negotiating a peace on theday oflast, and are therein referred to as objects of the desires and expectations of Congress. They are also instructed to observe to his Most Christian Majesty with respect to this claim, that it does not extend to any parts of the sea lying within three leagues of the shores held by Great Britain or any other nation. That under this limitation it is conceived by Congress, a common right of taking fish cannot be denied to them without a manifest violation of the freedom of the seas, as established by the law of nations, and the dictates of reason; according to both which the use of the sea, except such parts thereof as lie in the vicinity of the shore, and are deemed appurtenant thereto, is common to all nations, those only excepted who have either by positive convention, or by long and silent acquiescense under exclusion, renounced that common right; that neither of these exceptions militate against the claim of the United States, since it does not extend to the vicinity of the shore, and since they are so far from having either expressly or tacitly renounced their right, that they were prior to the war though indeed not in the character of an independent nation, in the constant, and even during the war, in the occasional exercise of it; and that although a greater space than three leagues has in some instances been, both by publick
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treaties and by custom, annexed to the shore as part of the same dominion, yet, as it is the present aim of the maritime powers to circumscribe, as far as reason will justify, all exclusive pretensions to the sea, and as that is the distance specified in a treaty to which both Great Britain and his Majesty are parties, and which relates to the very object in question, it was supposed that no other distance could, in the present case, be more properly assumed; that if a greater or an indefinite distance should be alleged to be appurtenant by the law of nations to the shore, it may be answered, that the fisheries in question, even those on the banks of Newfoundland, being of so vast an extent, might with much greater reason be deemed appurtenant to the whole continent of North America than to the inconsiderable portion of it held by Great Britain; that Congress expect, with greater assurance, the concurrence of his Majesty in these ideas, since his own claim to the fisheries would, by a contrary doctrine, be suspended on the mere concession of Great Britain, instead of resting on the solid and honourable basis of the law of nations, and of right; that if Great Britain cannot, by virtue of her occupancy of the shore, claim an exclusive use of the fisheries beyond the vicinity thereof, and a right to the common use is incident to the United States as a free and independent community, they cannot admit that they have no such right, without renouncing an attribute of that sovereignty which they are bound, as well by respect for his Majesty's honour as for their own interests and dignity, to maintain entire; that this right is no less indispensable in its exercise than it is indisputable in its principles, the inhabitants of a considerable part of the United States being dependent thereon, both for a material proportion of their subsistence, and for the means of their commerce; and as
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they were in the full enjoyment of this resource prior to the Revolution, the loss of it by an event from which very different expectations have been cherished, and which ought to bestow, as far as possible, equal advantages on all who have laboured equally for its accomplishment, could not fail to be attended with disappointment, and mortifying comparisons: that from these considerations, Congress have the most earnest desire, as well as the most sanguine hope, that his Majesty's efforts will obtain for his allies a stipulation on the part of Great Britain, not to molest them in the common use of the fisheries, as above stated; or, if insuperable difficulties should oppose a positive stipulation in their favour, that his Majesty will in every event find means to avoid a surrender of that common right; that whilst, however, this latter expedient is suggested to his Majesty, it cannot escape his discernment that it is so pregnant with dangerous consequences, that the former cannot be contended for with too much urgency and zeal.
That with respect to the confiscated property of those who have adhered to the interests of the enemy, and which may possibly be claimed for the former owners, the aforesaid ministers are to observe to his Majesty, that these confiscations having taken place, more or less, in almost all the states; and having undergone various transfers from individual to individual, a specifick restitution is absolutely impracticable; and when the vast amount of them is compared with the ravages and burdens which the war will leave behind it, an equivalent restitution would be little less than impracticable; that as the general usage of nations, as well as the particular law of Great Britain, excludes aliens from holding real and immoveable estates, the moment our national independence was assumed, the titles of all those who, on or prior to that event, espoused
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the side of the enemy, became, under strict construction, extinct; and that such as afterwards deserted to them, falling under the denomination of traitors, have forfeited not only their estates but their lives to their country; that although it were to be admitted that the peculiarity of circumstances which distinguish the present war between the United States and Great Britain, from a war between two nations seperate and independent at its origin, affords some plea for reversing the confiscations, this consideration is far outweighed by the great value of which the citizens of these states have, contrary to the laws of war, been despoiled by the enemy, and the still greater losses which they have suffered from wanton destruction; in both which, those who have fled, or been expelled from their country, have been often the chief instigators and instruments; and by the first of which, many of them have enriched themselves greatly beyond their losses.
That the ministers further observe to his Majesty, that any stipulations authorising such fugitives and exiles from their country to return into it, would not only be dishonourable to the governments of these states, but so obnoxious to the people at large, and especially to such as have been the objects of their outrages, that it is the particular wish of Congress that it may be most strenuously opposed; that such a permission is the more to be dreaded, as it could only be intended for such as are totally devoid both of honour and sensibility, who alone would avail themselves of a privilege that would subject them to the indignation and resentments which they had provoked.
That as it is not improbable the subject of commerce will, among others, be introduced into the negotiation, the ministers be instructed to observe thereon to his Most Christian Majesty, that the United States,
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as a free and sovereign nation, being the absolute masters as well of their commerce as of their government, no claim of right can nor probably will, be pretended with respect to the former, by those who relinquish such pretension with respect to the latter; that it is the wish and the policy of the United States to preserve their commerce as unfettered as possible with stipulations in favour of nations with which they are now unconnected, and particularly of that with which they are now at war; that this policy cannot but coincide with the sentiments of his Majesty, since it alone will leave to his allies the future opportunity of manifesting their preference of his interests to those of his enemies and rivals; that Congress do for these reasons most earnestly desire, expect and entreat that his Majesty will spare no efforts that may be necessary to exclude from a treaty every article which would restrain the United States from imposing on the trade of Great Britain any duties, restrictions or prohibitions which may hereafter be judged expedient; unless, and so far only, as a relaxation in this point may be essentially necessary for obtaining peace, or the several objects above mentioned.1
[Note 1: 1 This report, in the writing of James Madison, is in the Papers of the Continental Congress, No. 20, I, folio 75--83.]
On the 22d of January, 1782, the foregoing report was referred to another committee, consisting of Mr. [Daniel] Carroll, Mr. [Edmund] Randolph and Mr. [Joseph] Montgomery, who on the 16th day of August, 1782, reported, that they have collected facts and observations as follows, which they recommend to be referred to the Secretary for foreign affairs, to be by him digested, completed and transmitted to the ministers plenipotentiary for negotiating a peace, for their information and use.
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The Committee to whom was referred the report of the Committee containing instructions to the ministers of the United States concerning these objects, which are not made ultimata report as follows:
Resolved, That the following instructions be given to the ministers Plenipotentiary of the United States for negotiating a peace.
Gentlemen,
Although by our act of theday of last we excluded the boundaries of the United States from the ultimata of peace, and by a subsequent act of theday of which repealed the separate powers of Mr. J. Adams to enter into a treaty of commerce with Great Britain the fisheries were reduced to the condition of other objects not made ultimata, yet our late resolution of theday of January will evince our solicitude for the acquisition of both. This solicitude impels us to suggest to you these considerations which may establish or explain our pretensions.
Facts and Observations in support of the several Claims of the United States not included in their Ultimatum of the 15th of June, 1781.
1. Our common right to take fish in the North American seas, and particularly in that part of them which goes under the name of the Banks of Newfoundland, has its origin in the natural incapacity of the sea to be appropriated.
The practice of nations hath, for the sake of safety and tranquillity, abridged this freedom of the ocean, by annexing to the coast a reasons hie tract of the water; and Great Britain, by availing herself of this usage, will probably may possibly arrogate the exclusive enjoyment of the banks, as appurtenant to the Island of Newfoundland.
These banks, the nearest point of which is thirty-five leagues distant from Cape Race, are too far advanced in the Atlantick to be a dependance of the shores.[a] There has been great schism division among writers in determining to what extent the sea is to be considered as incidental to the territory which it washes. Some have apportioned one hundred miles, other sixty, and
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others as much as could be seen from land in a fair day. See Anderson's history of commerce, 2 vol. 17, appendix.
If we pass from theory to the stipulations of treaties, we shall find better aid, but by no means uniformity. By better aid, we mean British precedents; for against these, a British king surely will not struggle.
[b] In the second year of James the first, commissioners were appointed on the part of England and Scotland, to treat of and conclude a union between the two kingdoms. By the articles for the regulation of trade, the sea, for the space of fourteen miles from the coast of Scotland, was reserved to Scotchmen only; and it was reciprocally provided in favour of Englishmen. See Spotswood's history of Scotland, 483, and 2 Anderson, Appendix, 17.
Should this example be thought to lose the force of its application, from having been the agreement of the subjects of one and the same prince, a letter may be quoted from Secretary Staunton to Lord Carlton, the English ambassador at the Hague, bearing date the 21st of January, 1618. In it the ambassador is commanded to urge the States General, in the name of King James, to publish a placart prohibiting their subjects to fish within fourteen miles of his coasts until the main business should be finally accommodated by commissioners.
[c] The treaty of Paris, in 1763, to which his Most Christian Majesty as well as his Britannick Majesty was a party, excludes the French from the exercise of the fishery in the Gulf of St. Lawrence only within three leagues from the shore, extending the distance round Cape Breton to fifteen leagues.
[d] By inspecting the ancient treaties between England and the dukes of Brittany and Burgundy, the liberty of fishing is not restrained we shall find that the
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portion of the sea which is supposed to belong to the coast is so far from being increased beyond fourteen miles, or even three leagues, that the liberty of fishing in every part thereof is asserted. See treaties between Henry sixth, and the Duchess of Burgundy; Edward fourth, and Francis, Duke of Brittany; Henry seventh, and Philip fourth, Arch Duke of Austria; and Duke of Burgundy and Henry eighth and Charles fifth, Emperor and Duke of Burgundy.
Had the kings of England esteemed the fisheries the property of the crown, they would not have admitted aliens to a promiscuous fishing with their own subjects without some valuable consideration, or an acknowledgment by way of salvo jure. But, instead of a proceeding like this, they have in a succession of ages deliberately omitted to challenge to themselves the sole right of the fisheries.
[e] Queen Elizabeth too, being involved in a dispute with the king of Denmark concerning the fishery at Wardhuys, near the North Cape, instructs her plenipotentiaries to deny that "the property of the sea at any distance whatsoever is consequent to the banks." The king of Denmark does not attempt in his reply to establish what she had thus denied, but rests his exclusive claims upon the authority of old treaties between the two crowns. See Rymer's Foedera, tom. 16th, p. 425.
Thus it appears that, upon strict principles of natural law, the sea is unsusceptible of appropriation; that a species of conventional law has annexed a reasonable district of it to the coast which borders on it; and that in many of the treaties to which Great Britain has acceded, no distance has been assumed for this purpose beyond fourteen miles.
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Were these rules then allowed to influence the pretensions of Great Britain with respect to the banks of Newfoundland, they would be readily condemned. Nor could they be supported, were the sea appendant to the shore as far as thirty leagues, the greatest distance, perhaps, which has at any time been ceded to the king of England by treaty.
Nations may indeed, either by positive contract, or by long and silent acquiescence under exclusion, renounce their privileges in the sea. But the United States have not only never disclaimed their right of fishing therein, but have been in the constant enjoyment of it during the existence of British government, and occasionally so ever since the Revolution.
It deserves attention, that the fisheries furnish the inhabitants of a considerable part of the United States with an important proportion of their subsistence, and the means of their commerce. Should they lose this resource by the accomplishment of independence, an event from which very different expectations have been cherished, and which ought to bestow equal advantages on all who have laboured equally in giving birth to it, such a loss cannot fail to be attended with disappointment and mortifying comparisons.1
[Note 1: 1 This sentence was changed in the draft by John Rutledge to read: "Should they lose this resource by the accomplishment of independence it would be an event from which very different expectations have been cherished, and attended with the most mortifying disappointment," but Congress appears to have adopted the draft in the original form.]
As it is the aim of the maritime powers to circumscribe, as far as equity will suffer, all exclusive claims to the sea, we trust that his Most Christian Majesty will coincide with our present doctrines.2 Perhaps, however,
[Note 2: 2 This sentence was changed in the draft by John Rutledge to read: * * * "will coincide with our views," and all thereafter up to the paragraph beginning: "New Hampshire claims," etc., was struck out by him. Congress, however, appears to have adopted the draft in its original form, except for the paragraph which is struck out in the text.]
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the ninth and tenth articles of the treaty of amity and commerce may be supposed, from a little ambiguity in their language, to forbid us to insist on a participation of the fisheries on the banks of Newfoundland and in the Gulf of St. Lawrence, as being frequented and enjoyed by the subjects of France. But what is the genuine construction of these articles?
The ninth begins with a general stipulation, that the subjects of one party shall abstain from fishing in all places possessed or to be possessed by the other; interdicts those of France from fishing in the havens, bays, creeks, roads, coasts or places which the United States hold, or shall hereafter hold, as well as the inhabitants of the United States, from fishing in the havens, bays, creeks, roads, coasts or places which the Most Christian King possesses, or shall hereafter possess. But this exclusion is to take place only so long and so far as an exemption shall not in this respect have been granted to some other nation.
The tenth article binds the United States and their citizens not to disturb the subjects of the Most Christian King in the exercise of the right of fishing on the banks of Newfoundland, nor in their indefinite and exclusive privileges on the coast of the island of that name, conformably to the true sense and meaning of the treaties of Utrecht and Paris.[f]
If it can be truly said, that the fisheries in the Gulf of St. Lawrence and on the banks of Newfoundland are possessed or holden by France, the citizens of the United States are entitled, according to the provision of the ninth article, to like access with the subjects of Great Britain.
But the sea cannot be holden or possessed, these terms implying appropriation. They accord welt with havens, bays, creeks, roads or coasts; and also with
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"places," should this word be confined, as it ought to be in its interpretation, to waters susceptible of occupancy.
Had it been conceived that the ninth article debarred the United States from fishing on the banks of Newfoundland, it would have been unnecessary to guard in the tenth against the molestation of the French in fishing there. Besides, an engagement not to disturb, does of itself import that the citizens of the United States may fish, if they do not disturb.
There seems too a remarkable antithesis between the right of fishing and the right derived from the treaty of Utrecht, as to the coast of the island of Newfoundland. The former is called simply the enjoyment and exercise of the right of fishing; but the latter is more pointedly denominated indefinite and exclusive. In a word, we are persuaded, from our experience of the candour and friendship of his Most Christian Majesty, that it was not his design to depress the United States by thrusting them from a share of the fisheries, which Providence appears to have destined for their use; but rather to secure the fisheries of his own country from encroachment, and his subjects from interruption in those of America.
II. Our confidence in your historical knowledge rescues us from the labour of a minute account of the American settlements; we shall therefore exhibit in the discussion of our boundaries a summary only of our title, and even in this we shall avoid the mention of the adjustment of limits or of disputes concerning them between different States unless the general enquiry can receive light from such adjustment or disputes.
2. With respect to the boundaries of the states. The patent to the council of Plymouth, bearing date the 18th of November, 1620, is the parent from which the eastern states proceed.[g]
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New Hampshire claims under the royal commission appointing Benning Wentworth, esquire, governour of that province,[h] on the 13th July, in the fifteenth year of the reign of George the second.
Massachusetts claims under the charter granted by William and Mary, on the 7th October, 1691. The treaty of Paris fixes the Mississippi as the western limit of the old colony of Massachusetts Bay, which is one of the colonies incorporated by that charter.[i] See old charter of 4th March, 1628--9.
The charter of April 23, 1662, granted by Charles the second to Winthrop and others, is the ground of the territorial claims of Connecticut. The treaty of Paris is allowed to restrict that State also to the Mississippi.[j]
On the 8th July, 1662, the same prince granted the charter under which Rhode Island claims.[k]
New York assigns, as sources of her title, the grant from Charles second to the Duke of York, in 1663--4, the capitulation of the Dutch in the same year, the treaty of Westminster, 1674, and the renewal or confirmation of the duke's grant immediately after the treaty. This State adds, that the lands on the west side of Connecticut river belong to it under the farther title accruing by the subjection of the Five Nations, the native proprietors; and that the country, as far northward as the river St. Lawrence, and westward without known limits, is the property of New York, as having been formerly possessed by those tribes of Indians and their tributaries. The treaties with those nations in 1684, 1701, 1726, 1744, and 1754, are particularly referred to.[l]
On the 23d June, 1664, the Duke of York conveyed, out of his aforesaid grant to Lord Berkeley and Sir George Carteret, the limits which New Jersey claims. Upon this ground, and the resignation of the government
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into the hands of the crown on the 14th August, 1703, is the title of this State built.[m]
Pensylvania claims under the charter granted by Charles the second, on the 4th of March, 1681--2, to William Penn.[n]
Delaware claims under two grants from the Duke of York to William Penn, on the 24th August, 1683.[o]
On the 20th June, 1632, Charles the first granted to Lord Baltimore the limits which Maryland claims.[p]
Virginia claims under the charter granted by James first, on the 23d of May, 1609, to the treasurer and company, the resumption of the country into the hands of the king, and the charter of Charles second to the colony of Virginia, on the 10th October, 1676. The treaty of Paris marks its western boundary.[q]
North Carolina and South Carolina claim jointly in the first instance under the charter of 1662, to Clarendon and others, and its confirmation in 1664, with an extension of limits. The British statute of 1729, enabling the king to pay the consideration of the surrender of the proprietors, makes a material point in their case. The seperate claims of these two states depend upon the act which divided them. The treaty of Paris defines the western boundary of each.[r]
The first grant on which Georgia relies, is that made to the trustees on the 8th June, 1732, and limited to the west by the treaty of Paris. The second grant is the proclamation of 1763.[s]
Were the lands included within these limits merely such as were granted to individuals and settled, or granted and not settled, at the time of the Revolution, they could not be brought into controversy. For no question can arise concerning boundaries until the recognition of independence; and this event, by deposing the king of Great Britain from the rank of lord
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paramount and chief magistrate of America, destroys the only principles by which lands falling within the two preceding descriptions could return into his power. But the views, interests and conduct of his Britannick Majesty forbid us to expect that he will acknowledge the territory remaining ungranted at the era of independence to be, in like manner, the property of the United States, or of the particular state within the limits of which it is comprised.
It is therefore incumbent on us to show--
First, That the territorial rights of the thirteen United States, while in the character of British colonies, were the same with those defined in the instructions given to Mr. J. Adams on theday of August, 1779; and,
Secondly, That the United States, considered as independent sovereignties, have succeeded to those rights; or,
Thirdly, That if the vacant lands cannot be demanded upon the preceding grounds, that is, upon the titles of individual states, they are to be deemed to have been the property of his Britannick Majesty immediately before the Revolution, and to be now devolved upon the United States collectively taken.
First, So fair are our pretensions rendered by the united operation of the grants, charters, royal commissions and Indian cessions enumerated above, that we shall content ourselves with reviewing the objections which will most probably be urged against them, without entering into direct proofs of our titles.
First objection. Even upon the supposition that the charter of Massachusetts is valid, so as to cover the vacant lands, still it does not follow, that St. John's river is part of its eastern boundary. For that river is contended to be in Nova Scotia under the expression in the new charter of Massachusetts, in 1691, which conveys the country between the province of Maine and
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Nova Scotia. The southwest boundary of Nova Scotia, therefore, will regulate this claim. But it is well known that in the altercation between France and Great Britain upon this very subject, in 1751, Acadia, or Nova Scotia, was asserted by the latter to be bounded by Pentagoet or Penobscot river.
Answer. It is to be observed, that when the boundaries of the United States were declared to be ultimata, it was not thought advisable to continue the war merely to obtain territory as far as St. John's river; but that the dividing line of Massachusetts and Nova Scotia was to be consigned to future settlement. It must be confessed also that this country, which is said in the new charter to border on Nova Scotia and the province of Maine, on opposite sides, and which goes under the name of Sagadahock, cannot be proved to extend to the river St. John, as clearly as to that of St. Croix. But there is some reason, notwithstanding, to believe that Nova Scotia was never supposed by the British King, in any grant to his subjects, to come to the south of St. John's river, although he might have exacted from France a relinquishment of the lands to the river Penobscot, or even Kennebeck, as a part of Nova Scotia.
The first notice taken of Nova Scotia by the king of Great Britain was in a grant which he made of that country to Sir William Alexander, on the 10th September, 1621. According to this grant, it was to begin at Cape Sable, to extend towards St. Mary's bay, to cross the great bay between the Etchemins and Sourigois to the mouth of the river St. Croix, to run up to the source of that river, and from thence by a strait line drawn northwardly to the great river of Canada.[t] On the 12th July, 1625, a patent issued to the same Sir William Alexander, confirming to him the same limits.[u]
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These grants could not reach to the west of St. Croix, "because" (say the English commissaries in their memorial of the 11th January, 1751, s. 42,) "all the country to the westward of the river St. Croix had, in the year 1620, before the date of the first of them, been granted by King James to certain of his subjects, by the name of the council of Plymouth, of which grantees Sir William Alexander was one, and who, by virtue of an agreement among the said grantees, possessed the country lying between the river St. Croix and Pemaquid, a little to the westward of Pentagoet."[v]
Popple's map, which was undertaken, as the author relates, with the approbation of the lords commissioners of trade and plantations, makes St. Croix the western boundary of Nova Scotia.[w] Champlain expressly bounds Acadia by St. Croix to the westward.[w] We may add, as being farther corroborative of this western limit of Nova Scotia, that the English commissaries themselves, in their reply of the 4th October, 1751, commend the map in the fourth volume of Purchas's Pilgrim as the first ancient map of Nova Scotia and New England deserving notice; the latter of which they assert to be bounded northwardly, as is delineated in the map, by the river St. Croix.[x] The same commissaries afterwards remark, that it is clear from history that the country between the rivers Sagadahock and St. Croix had been settled many years earlier than the date of the new charter of Massachusetts; and that Great Britain considered it as part of her American colonies. It could not have been included within Nova Scotia, since it is expressly contradistinguished from it.[x] Sagadahock too is granted to the Duke of York under the description of "all that part of the main land of New England beginning at a certain place called or known by the name of St. Croix adjoining to New Scotland in America."
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Should it be argued, that it was manifestly the opinion in England at the time of granting the new charter that the lands between the rivers Sagadahock and St. Croix were not included within the limits of Massachusetts, since grants of them were not valid until confirmed by the crown;--an answer arises from two considerations. First, this charter incorporates these lands into the province of Massachusetts in unequivocal terms; and, secondly, one at least of the counsellors directed to be chosen yearly for the province at large, was to be from the inhabitants or proprietors of lands within this territory.[y] The board of trade and plantations on the 29th April, 1700, declared in a solemn act, that "New England ought of right to extend to St. Croix."[z] See the act.
It does not appear then, that Nova Scotia hath ever been carried to the west of the River St. Croix in any British grant, or in any British document relative to New England. We own that in the memorials of the Court of Great Britain to the French Court, after the peace of Aix-la-Chapelle, relative to the boundaries of Nova Scotia, Penobscot river is sometimes asserted to be one of its boundaries, and Kennebeck, at others. But nothing is proved from thence, but a desire in the British king to procure an absolute release from France of all her pretensions, howsoever distant. For a general discussion on this subject, see the British and French memorials on the occasion, and to the treaties of St. Germain, on the 29th of March, 1632, of Westminster, 3d November, 1655, and of Breda, 31st July, 1667.
As to the territory of Sagadahock, which is synonymous with the lands between the province of Maine and Nova Scotia, conveyed by the new charter, we can only observe upon the expression already cited from the grant thereof to the Duke of York, that the "place
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called St. Croix adjoining to New Scotland" must mean the territory which went by that name. Had the river only been designed, it alone would have been mentioned. It seems to have been the practice of those times to denominate a country from a river which bounded it. The river Sagadahock accordingly, at first, gave its own appellation to the whole country as far as the river St. Croix, and afterwards to the country from thence to the river St. John, which had before been called St. Croix. The place, therefore, called St. Croix, adjoining to New Scotland, was most likely intended to describe the lands between the rivers St. Croix and St. John. History does not inform us that any particular spot of them was known as St. Croix. But as the first course of the grant to the Duke of York plainly runs from Nova Scotia to Massachusetts along the seacoast, it is probable that it was to begin at the first point in the country of St. Croix on the coast. This must have been on St. John's river. And as the last line of the grant is not closed, it is more agreeable to the usage of those days to adopt a natural boundary. For this purpose, St. John's river was obvious as far as its head, and afterwards a line to the great river of Canada.[aa] See grant to the Duke of York for Sagadahock, 12th March, 1663--4.
We are obliged to urge probabilities, because in the early possession of a rough unreclaimed country accuracy of lines cannot be much attended to. But we wish that the northeastern boundary of Massachusetts may be left to future discussion, when we may be able obtain other evidence which the war has removed from us.
Second objection. But let the new charter of Massachusetts comprehend, by its expressions, the country from the river St. Croix to that of St. John, and the
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title papers of the other states cover by their terms ever so much land, they cannot be supposed, at this day, to justify the demand of such wide limits as are demanded in Mr. Adams's instructions of August, 1779.
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Answer to objection second, part first. It cannot be admitted that even a miscomputation of the distance between the Atlantick and Pacifick oceans, vitiates the charters which extend from the one to the other. In every contest among the European powers concerning the soil of America, the validity of charters hath been conceded.[bb] See treaties of Germain, Westminster, and Breda, and the memorials of the commissaries above referred to.
The king of Great Britain will not fail to acknowledge their sacredness when he calls to mind the doctrine of the British laws, by which the charters of corporations are protected. Of how much more importance is a charter granted to the suffering explorers of the American wilderness.
It is also remarkable, that during the rage for the sacrifice of American charters in the reign of Charles II. some of them were vacated by the judgment of a court, by which their former legal existence was recognised; and that the arbitrary administration of a Stuart himself would not attempt to destroy a charter without the formality of legal process. An American charter then, being thus respectable in its nature, equity will not suffer it to be annulled on account of a misconception of its contents, when the grantees could not possibly have contributed to the mistake by fraudulently withholding information upon the subject, and when the king hath never pretended that he was deceived, or erred. But had the interval between these seas been precisely ascertained, it is not probable that the king of England would have divided the chartered boundaries now in question into more governments. For perhaps
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his principal object at that time was to acquire by that form of occupancy which originated in this western world, to wit, by charters, a title to the lands comprehended therein against foreign powers. The seacoast too was not in his opinion more than sufficient for the territory of a single colony, as is manifested in the charter to Virginia, in 1609; and the interiour parts, overspread as they were by savages, and distant as they must be from that relief from Europe, without which the new settlements would certainly have perished, would have been a pitiful instance of royal bounty, and no temptation to emigrants; nor is this merely conjectural. Let the charters which run to the South Sea be reviewed in chronological order. By this it will be found, that these extensive limits did not creep in through inadvertence, as they were repeated long after the errour had been removed as to the distance of that sea.
On the 23d of May, 1609, James I. granted the charter under which Virginia claims.
On the 3d of November, 1620, the charter to the council at Plymouth was granted.
On the 4th of March, 1628--9, the charter of the old colony of MassaChusetts was dated.
On the 20th of March, 1662, the first charter of Carolina was granted.
On the 20th of April, 1662, Connecticut received its charter.
On the 30th of June, 1664, the second charter of Carolina was granted.
On the 7th of October, 1691, the new charter of Massachusetts, which among other things re-established the old colony, was granted.
In 1732, Georgia was erected into a seperate government.
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If it be necessary to seek other illustrations, an appeal may be made to the act of the British parliament in 1729, (2 G. 2. ch. 34.) which has been already noted, and recites the charter of Carolina as extending to the South Sea. Nay, as late as the year 1740, five commissioners were appointed on the part of the king, and five on that of Lord Carteret, to assign to his lordship his one-eighth of Carolina, which he had refused to surrender; and the South Sea was fixed as the western limit of the territory allotted to him.[cc] We cannot forbear to add a general concession from the crown in the several charters, that when doubts should arise, the construction should be strict against himself, and liberal in behalf of the grantees.
Answer to second part of second objection. The facts related in this branch of the second objection are true; but we shall not attempt to prove that the colonies of Virginia, North Carolina and South Carolina, were lawful successors to the rights of the proprietors. We assume that the lands described by the charters of those colonies were, from their necessary operation, subjected to the jurisdiction of the governments of those colonies respectively; and therefore, that they would have constantly remained so subject during the existence of the proprietary administration, even if the proprietors had had a right to throw them off from that jurisdiction, unless some act of dismemberment had been done. But we protest against such a right of dismemberment being lodged in the proprietors, except with the assent of the people.
The charters of the abovementioned colonies were contracts, to which the king, the proprietors and the emigrants [for themselves] and their posterity were parties. The consideration paid by the king for the product of mines and of future commerce, was the protection of the
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proprietors and emigrants. The proprietors disbursed money for the expences of the first settlement, and were the owners of the soil, and the managers of the government. The emigrants were the actual improvers of the country, promising to themselves and their descendants the superintending care of their sovereign, a mild government by the proprietors, and a continuance of the boundaries defined in their charters. We say a continuance of the boundaries: For there were good grounds why the first planters should be opposed to an alteration of boundaries at the will of the proprietors.
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the former, connected as it is with agriculture and manufactures, and the latter, dependent as it also sometimes is upon the association of persons of a similar persuasion, have been prevented by an arbitrary and malicious contraction of limits.
The first charter recites, that Sir Thomas Gates and his fellow adventurers were desirous of dividing themselves into two several colonies and companies. §2. In section 3, the king commends the undertaking; in section 4, gives one hundred miles square to the first colony; and the like quantity in section 5, to the second. This cannot be said to favour any subdivisions of chartered territory. Sections 4 and 5. Every other subject was prohibited from planting, or inhabiting behind either of the two colonies. This prohibition was plainly dictated by the danger apprehended from the establishment of distinct governments. In no part of this charter is provision made for the government of more than two colonies. It was impossible then for the proprietors to institute different governments. A new and seperate colony erected by their authority could not have a seal, establish a coin, and convey the franchises of British natives to persons born therein of British subjects, nor designate grantees of land. In short, the charter of 1606 does constantly discountenance divisions
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of the territory for the purpose of additional provinces.
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way. But it is an argument of real force with respect to Virginia, that the charters of 1609 and 1611--12 were granted to the treasurer and company as a corporation, and that it is a firm principle of British law, that a corporation cannot exclude from their jurisdiction lands placed within it by the terms of its constitution.
In the last clause but two in the second charter, the royal word is pledged to the proprietors, "their heirs and assigns, and to the tenants and inhabitants of the said province or territory, both present and to come, and to every of them, that the said province or territory and the tenants and inhabitants thereof, shall not from henceforth be held or reputed any member or part of any colony whatsoever in America, or elsewhere, now transported or made, or hereafter to be transported or made; nor shall be depending on or subject to their government in any thing, but be absolutely seperated and divided from the same." Nay, so little was the power of altering the limits conceived to be inherent in the proprietors, that the authority to divide the territory into counties was delegated to them in positive terms.
It must however be confessed, that before the surrender of the charter, in 1729, North and South Carolina had each a governour, council and assembly. But this seperation of jurisdictions was not the creature of the proprietors alone, but was effected with the approbation of the inhabitants, some of whom laboured under great inconvenience from having the metropolis and the settled country around it distant from them three hundred
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miles and upwards.[ff] See Lawson's history of Carolina, p. 256.
The example of New Jersey cannot be cited against the right of the people to demand from the proprietors an entirety of territory. For the very grant upon which they rest expressly warrants an equal division between Lord Berkeley and Sir George Carteret. See the Duke of York's grant [to New Jersey]. The argument from hence would rather be, that when the power of division was intended it was specially mentioned.
It would be tedious to detail, in this place, the many passages in the charters to Lord Baltimore and Mr. Penn, which maintain the principle, that the first limits ought to be permanent. So opposite to private emolument was the office of the trustees of Georgia, that they enjoyed no right which was not for the benefit of the people. The limits granted to the trustees were in fact granted to them. [But we are unable at present to be more particular, not having access to the grant itself.]
What change, then, was wrought by the conversion of the proprietary governments of Virginia, North Carolina and South Carolina, and the fiduciary one of Georgia, into royal?
Virginia. It is needless to inquire whether the charter of 1609 was abolished lawfully or not. Because, as its abolition was the act of the king, he cannot contend that it was produced by violence or injustice; and the company and their successors have yielded to the resumption from 1624 to this day, without bringing it to a forensick discussion, or endeavouring to reverse it by a petition to the crown. Either of these remedies was easy, and constitutional. But a superiour reason is, that a dispute between the king and company, two of the three parties to the charter, ought not to prejudice the people of Virginia, who were the third.
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who stipulated with the proprietors for the territorial privileges in the charter with the privity, assent nay guarantee of the king, who could not profit from a rupture between him and the proprietors, and ought not therefore to be injured.
But what if the king had not been an immediate party? Surely his succession to the rights of the company brought with it a succession to their engagements respecting territory; unless James I. as king of England, was authorised to violate, in spoliation of his own subjects, that rule of natural law under the influence of which his Prussian Majesty bound himself, upon obtaining Silesia, to be answerable to the British king for the encumbrances imposed on that country by the Empress of Hungary in his favour.
It is a warrantable corollary from the inability of the proprietors to mutilate the limits in the charter of 1609, that the king standing in their place was alike incapable. This reasoning is not impeached by the divisions which the chartered limits of Virginia have undergone. They were made at periods when the people could not feel an interest in opposing them; when extreme loyalty was the highest virtue; when they were weak. The quotation of their submission in this instance, as an evidence of their consciousness of the king's right, would be somewhat unnatural; since it would suppose, that other men in the same circumstances would probably have acted otherwise.
The objections springing from the proclamation and Quebec statute will be discussed hereafter.
That the king of England thought himself bound to consider the colony of Virginia as possessing the limits of the charter of 1609, except in those cases in which it had been abridged before 1669, appears from the charter of 10th October, 1676. There the colony of
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Virginia is mentioned in general terms without definite limits. To confine it to the country then settled, would be inconsistent with its professed design of encouraging the plantation, and would exclude nine tenths of the present inhabitants. Not to confine it thereto, would demonstrate that Virginia was believed by Charles II. to comprehend some vacant land, and consequently that she must hold all the vacant land within the charter of 1609; since a single foot could not be demanded through any other channel. Long ago would the people themselves have required some determinate limits, had they not imagined that the charter of 1609 described them. So far too has the king of England been from marking out the boundaries of Virginia in the charter of 1676, or in any instructions to his governours, that he has by various acts corroborated our principle, that after the extinction of the charter they remained the same as before. For near thirty years has the governour of Virginia, acting under his authority and with his knowledge, granted lands on the west side of the Alleghany mountains. In 1748--9 Sir William Gooch, governour of Virginia, was instructed to grant to the Ohio company lands far westward of the Alleghany mountains, but still as the instruction and the letter enclosing it says, "On the Ohio within his Majesty's colony of Virginia."[gg] In 1753, an act was passed by the assembly of Virginia for the encouragement of settlers on the waters of the Mississippi. To this act the royal assent was given.[hh] In 1754, an act was passed by the same legislature for a similar purpose, in which Virginia is declared to possess lands on and near the waters of Mississippi. A very large sum of money has been levied upon the people of Virginia for the defence of that country. All this has been done with the knowledge and consent of the British king.[ii] In the year
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the governour and council of Virginia granted a tract of land at the confluence of the Ohio and Mississippi bounding upon both rivers.[kk] In 1754, Mr. Dinwiddie, governour of Virginia, promised, by his proclamation, a bounty of 200,000 acres of land on the western waters to the officers of the first Virginia regiment.[ll] The many land warrants issued by Lord Dunmore, governour of Virginia, were directed to be located on the lands lying on the western waters. In 1773, courts were holden beyond the Alleghany mountains under the authority and particular direction of the governour of Virginia.
Great sums have been expended by Virginia in defence of the Western Country.[mm]
The present situation of the two Carolinas and Georgia deprives us of the information concerning them, with which we are anxious to furnish you in detail.
The general observations applied to Virginia are applicable to the two Carolinas.
We shall endeavor to transmit to you such documents as may manifest the opinion of the British King to be that the chartered limits remained entire after the surrender. We assure ourselves that such will be found, especially as he has often interfered in the accommodation of their disputes about boundaries, and his ancestor George the 2nd. directed a temporary line between North and South Carolina upon the principles of the Charter.
Of Georgia it may be said, that the proclamation of 1763 revived its chartered limits by annexing the lands between the Alatamaha and St. Mary's river to that province; for at the date of that edict a considerable part of the lands northward of Alatamaha was vacant; and to suppose that by Georgia was meant that territory alone which had been granted to individuals, would annex the country south of Alatamaha, and shut out the vacant part lying on the north side of that river.
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But as no reasonable solution could be given of so whimsical an arrangement of territory, we may conclude, that the vacant land on the north of Alatamaha was comprised in the term of "Georgia." If so, since Georgia could claim vacant land only by virtue of the deed to the trustees, and that deed must have conveyed full limits, or nothing, it follows, that its territorial rights were restored, if they were affected by the surrender. But it has been already seen in what predicament the trustees stood. They were, what their title imports, mere trustees for the benefit of the province. Strangely then would it sound, that upon the refusal of those benevolent men, who had no personal interest in the trust, to persevere in fostering this infant nation, it must lose every thing, or in other words, hang on the pleasure of the king for a restitution of former rights.
Answer to third part of second objection. New York derives its claim from the Five Nations, insisting, 1st. That the king of England was lord of their soil; 2d. That being so, he transferred his seignory to that then province.
1. The Five Nations (Iroquois, or Six Nations) had from ancient days put themselves and their lands under the protection of Great Britain.[nn] The Duke de Mirepoix, in his memorial of the 14th May, 1755, to the ministry of London, denies that the lands of the Five Nations became vested in his Britannick Majesty by the deeds; but the answer returned by that ministry on the 7th June, in the same year, contends, that the 15th article in the treaty of Utrecht subjects the Five Nations to the dominion of Great Britain. That such subjection according to the genuine interpretation of treaties, relates to the country as well as to the person; and that France is precluded from altercating these points with Great Britain, because she has once acknowledged their
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propriety. It will not therefore be insisted, that the territory of the Five Nations belongs to the ancient and just limits of Canada, as the foregoing assertions were urged to confront a pretension of France to this effect; nor will it be denied, that the king of Great Britain was, with respect to his subjects at least, lord of the soil of the Iroquois, by being their protector.
New York maintains, in the second place, that its legislative and executive proceedings fromtoprove that this very Iroquois territory has been supported by its blood and treasure; that this circumstance does of itself create an equitable title, which has ripened into an indefeasible one, by Great Britain having always treated the country of the Iroquois and their tributaries up to the forty-fifth degree of northern latitude as transferred from itself to the government of New York.[oo] See documents to be furnished by the delegates of New York.
Answer to fourth part of second objection. The prohibition announced to the governours of all the colonies, except those of Quebec, East Florida and West Florida, to grant warrants of survey, or pass patents "for the present and until his (the British king's) farther pleasure should be known," for any lands beyond the heads or sources of the rivers which fall into the Arlantick ocean from the west and northwest, strongly intimates an opinion, that there were lands beyond the heads of those rivers within the jurisdiction of those governours. Otherwise the prohibition would have been unnecessary. Again, by the injunction "not to grant warrants of survey, or to pass patents for any lands whatever which, not having been ceded to or purchased by the British king, were reserved to the Indians, or any of them," a restriction of territory
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could not have been designed by a king, who granted charters to his colonies, knowing that they would interfere with the rights of the Indians, who has always considered a cession or purchase from them as a milder mean of anticipating their hostility rather than a source of title, who since the date of the proclamation has granted, through the prohibited governours themselves, large quantities of lands beyond the heads of those rivers, and whose own geographer, Emanl. Bowen, in a map delineating "the British, Spanish and French dominions in America, according to the treaty of Paris" and this very proclamation, has carried Georgia, South Carolina, North Carolina and Virginia as far as the Mississippi.[pp] The single object of these parts of the proclamation was to suspend the business of the land offices, not to curtail limits; to keep the Indians in peace, not to annihilate the territorial rights of the colonies.
But it may be charged as an inconsistency to set up the proclamation as increasing the limits of Georgia, when it thereby plainly mutilates South Carolina. The fact is, that before and after the cession of Florida, South Carolina asserted a right to the lands between the rivers Alatamaha and St. Mary's. Georgia contradicted. The dispute was ended by this proclamation of the crown, and the title of Georgia is certainly confirmed. Could South Carolina do more than represent her grievance? Having done this, did she confess the authority of Great Britain to dismember her at will, because she did not fly to arms? Another reason might [perhaps] have induced South Carolina to relinquish its opposition with less reluctance. Peace and its incidents being the province of the chief magistrate of the British empire, and the lands between Alatamaha and St. Mary's having been rendered neutral by an agreement with Spain, they were seperated from South Carolina.
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Now it might have been the opinion of some, that this circumstance weakened the original title.[qq] See treaty of Aix-la-Chapelle. Upon the prerogative of the crown to manage the affairs of peace, and the rights of France, depends the justice of limiting the American colonies to the Mississippi, by the treaty of Paris.
Answer to the fifth part of the second objection. Nor can the treaty of Fort Stanwix, in 1768, militate against Virginia. For the purchase then ratified did not imply a want of right in the king, but was solely, as was observed of the proclamation, an instrument of peace. Nor yet did he render the ceded lands exclusively his own; because the relation between him and the American royal colonies required his name in all conventions with the Indians concerning territory, even when the benefit redounded to them alone; because the franchise of pre-emption had been often asserted by some of them, and particularly by New Jersey in 172--, by an act of the legislature approved by the royal governour; and because, in the exercise of that franchise, the wealth of the colony, within which the purchased lands lay, was commonly expended.[rr] It is true that Virginia, in 1769, asked permission to purchase a more extensive boundary; but the causes were, that the superintendant of Indian affairs, who had the absolute guidance of the Indian councils, could be conciliated only through the medium of the crown; and the British governour would have withholden his assent to any vote, levying money for the purpose of such a purchase, without the approbation of his master.
Answer to the sixth part of the second objection. The Quebec act was one of the multiplied causes of our opposition, and finally of the Revolution. Even if it had been designed to abridge the boundaries of the colonies, the right of the British parliament to do so
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must be denied upon the grounds already shown. But the provision, that nothing therein contained relative to the province of Quebec should in any wise affect the boundaries of any other colony, destroys its operation with regard to those which are now required by us. [For this also we refer you to what has gone before.] Thus have we laid open the grounds of our claims to the boundaries specified in the instructions to Mr. J. Adams.
We undertook to prove in the first place, that they belonged to the thirteen Colonies. In doing this we avoided a regular and punctilious deduction of our rights because our pretensions appeared sufficiently fair, unless some defect could be discovered in them. The objections which stood foremost as being the most plausible were 1. against the North Eastern Boundary of Massachusetts, and 2ndly against the claim of the United States being so extensive as the strict construction of their title papers would justify; because 1. the charters running to the South Sea were granted through mistake, and at any rate were chimerical. 2. The charters of four of the Colonies had been surrendered. 3. New York cannot maintain her right under the six nations. 4. The Proclamation abridged our limits. 5. The Treaty of Fort Stanwix militates against them, and, 6, the Quebec act contracted them. To these objections and their different branches answers have been given. We now proceed to the second point.
The second point, to wit, that the United States have succeeded as independent sovereignties to the territorial rights of the colonies.
The states claiming vacant lands before the Revolution were, 1. Connecticut, a government belonging to the governour and company; 2. Pensylvania, a government belonging to a few individuals; 3. Massachusetts, possessing an express charter as a royal government; and 4. Virginia, North Carolina, South Carolina and Georgia, which were originally proprietary governments, and afterwards became royal, but received no special charter as such.
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Pensylvania and him, than what might have subsisted between that State and a subject of Russia. Since therefore he must share at the end of the war the disability to which aliens are liable upon principles of general as well as English law, as to the holding of immoveable property; since during the war it would be dangerous to tolerate remittances of its profit, specifick restitution is untenable upon any ground. Nor can compensation be solicited, although it should be absurdly thought that Pensylvania is indebted to Great Britain for favours. Has not England set us an example in this business? While she possessed territory on the coast of France, within which it was lawful for French subjects to acquire and hold lands upon the same terms with the English, was it not her habit to wrest them from the former immediately upon a declaration of war against their prince? Did she make compensations? It is remarkable too that the concessions of Mr. Penn, the original grantee to the province, allot to settlers nine tenths of the lands within the limits of the charter. Soon should we behold a new British colony composed of the choicest tools of tyranny emerge in the very bosom of Pensylvania, were Mr. W. Penn permitted to grant the vacant country. And shall we reward him because we unnerve his faculty of doing harm?
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supreme power be modified as it may, as the society remains the same, so do its rights. The argument of the objection extended one step farther implies, that the royal patents for land granted to individuals can convey no title at this day. What is the effect of this doctrine, but that a people must groan under every tyranny, or lose every privilege. [But let us quit the cavil.] All the lands in this colony were holden of the king in free and common soccage, the well known tenure in Great Britain; and grants to individuals ran in his name. In other words, he was lord paramount. In tracing the consequences of this paramountship, analogy will justify us in pursuing as the prototype the paramountship of Great Britain. The king is lord paramount there, merely because he is king. For even the ancient barons, with their numerous vassals and formidable force, never affected this character. Accordingly, if at any time during or since the vigour of the feudal system, the immediate tenant of a baron had aliened lands to an alien, they were forfeitable to the king. The same was and is the doctrine where he committed treason. These forfeitures could not be founded on a defect of heritable blood; because it would commence in the life of the alien or traitor, and because such a defect would restore the lands to the immediate lord of whom they were holden. But the forfeiture hath always devolved on the king, whose office it was as chief magistrate to guard against the residence of persons disaffected, as aliens generally are, and as traitors ever are, to the publick good. That the qualities of king and lord paramount are inseperable, appears from these facts: 1st. A king of Great Britain upon his accession to the throne receives no special investiture of power as lord paramount, but exercises it as a derivative from that of chief magistrate. 2d. The coronation
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oath relates to the functions of the lord paramount; but the sanction from religion for the due discharge of them is comprehended in that for the faithful administration of the government. 3d. Upon the abdication of James second, the throne was declared vacant; and neither his successor nor the people imagined it to be necessary to tear the paramountship from him by express words. Hence it follows, that he who ceases to be king, ceases to be lord paramount. Again, in dealing ont the lands of the kingdom, the British nation have conducted themselves with respect to the king, as a bare trustee for publick benefit. When William, the third, was squandering upon his minion the Duke of Portland profuse grants of land, the parliament interposed, and put a stop to them. Hence it also follows, that if George, the third, should become incapable of being their trustee, he would be also disqualified as lord paramount. If analogy be a faithful guide on this occasion, the inference is clear, that as George, the third, was obeyed in Massachusetts as king of Massachusetts, not as king of Great Britain, and has ceased to be its chief magistrate, and in the nature of the thing cannot be its trustee, he is also extinct as lord paramount. For the justness of the analogy we appeal to that clause in the new charter of Massachusetts which grants to its colonists the immunities of British subjects. We defy those who shall undertake to show that the charter placed the rights of British American subjects with regard to the paramountship, upon a different footing from those of their fellow subjects of Great Britain; and we venture to pronounce the parallelism of the eases from the identity of the tenure. We may here add another inference, that as the paramountship was an indissoluble concomitant of the chief magistracy, and the State of Massachusetts succeeds to those powers which the British king formerly
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exercised as king of that then colony, that State does also succeed to the paramountship.
The third point. But if the vacant lands cannot be demanded upon the titles of individual states, they are to be deemed to have been the property of his Britannick Majesty, as sovereign of the thirteen colonies immediately before the Revolution, and to be devolved upon the United States collectively taken. In agitating the case of these lands under this head, his Britannick Majesty will be very forward in asserting that he was seized of them; so that proof will be superfluous. The character in which he was so seized was that of king of the thirteen colonies collectively taken. Being stript of this character its rights descended to the United States for the following reasons: 1. The United States
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are to be considered in many respects as one undivided independent nation, inheriting those rights which the king of Great Britain enjoyed as not appertaining to any one particular state, while he was what they are now, the superintending governour of the whole. 2. The king of Great Britain has been dethroned as king of the United States, by the joint efforts of the whole. 3. The very country in question hath been conquered through the means of the common labours of the United States.
What has heretofore been observed regards only the title of the United States. There axe other considerations deserving attention. Should Great Britain retain that portion of the United States which borders on the Mississippi, the neighbourhood of her possessions will be imminently dangerous to our peace. Should she at the same time retain Canada and West Florida, or even Canada alone, by applying herself to the settlement of that country and pushing on her trade there with vigour a new nursery for her marine will speedily be established.
From a full confidence that the western territory now contended for lay within the United States, the British posts therein have been reduced by our citizens, and American government is now exercised within the same; large bounties of land have been promised to the army; and we have relied on it as an important fund for discharging the debts incurred during the war. For a considerable distance beyond the Apalachian mountains, and particularly on the Ohio, American citizens are actually settled at this day. By the surrender therefore of the western territory to Great Britain, a large number of fencible men, men too who have not been behind any of their fellow citizens in the struggle for liberty, would be thrown back within her power.
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France [ss] A memorial from Mr Gerard to Congress on the 22nd of May 1779 excites in us some degree of uneasiness. At the beginning he uses these expressions, "Il est notoire que l'objet direct et essential de l'alliance, subsistante entre sa magesté tres chretienne, et les Etats Unis, est de maintenir efficacement la liberté, la souveraineté et l'independence absolue et illimitée des dits Etats tant en matière de gouvernement, que de commerce et par consequent les droits territoriaux inherens a la souveraineté."
He goes on to enumerate several inferences from the positions contained in the memorial among which is the following, "En reunissant les enonciations des Articles 11e et 12e on voit que les succes de la guerre pouvant seuls fixer le sort des empires, il a été trouvé impossible lors de la confaction du traité de l'alliance de determiner les possessions, que les Etats Unis pourroient obtenir a la paix, qu'en consequence la garantie de la France n'a pu etre que conditionelle et eventuelle a cet egard: qu'elle n'est tenue maintenant a aucune garantie particulière relativement a ces memes possessions, soit reelles soit pretendues; et que cette obligation ne commencera qu'a l'epoque a laquelle les possessions des Etats Unis auront été constatées par la cessation de la guerre."
The 11th and 12th Articles are in the following words [insert them verbatim].
A rupture then having taken place between France and England, the reciprocal Guarantee declared in the 11th Article has for a long time been in full force and effect. For although this article fixes the guarantee of the whole as the possession shall be assured to the United States at the moment of the cessation of their present war with Great Britain; yet the 12th specifies two æras at either of which the guarantee should commence, a rupture between France and Great Britain, or the termination of the war without such a rupture.
The word "possessions" will certainly comprehend the lands actually occupied by Individuals. For the Independence of the United States involves of necessity a territorial idea, since to guarantee the Independence of a number of men would, if they were to be expelled from their Country, have been too futile to enter into the wish of the United States, or the meaning of France. "Possessions" must also imply lands not in immediate occupation but granted merely to individuals. The term bears this signification in Europe, and in an infant country, like America, in which improvement cannot be coextensive with grants; but on the contrary, in which grants are made of large tracts of waste land, as an incentive to improvement,
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it must particularly have this signification. The term also describes the vacant lands, which were ungranted at the Revolution. For although they were not possessed by individuals yet they ware possessed by the society. In the 6th Article the Most Christian King renounces forever the possession of the Islands of Bermudas. In this place "possession" is extended to a bare right, as it cannot import actual occupancy.
How strange would it seem, had we been solicitous about Bermudas, and regardless of a territory which we always claimed, which is incorporated with our Country, and on which we counted as a source of revenue!
Had not war been waged by France with Great Britain, there was good reason why the former should not guarantee to the United States any other territory than what might be secured to them at the cessation of hostilities. The single arm of America unassisted by France might not be sufficient for the vindication of all her territorial rights. But upon a positive guarantee France would have been obliged to preserve the whole of them even by a declaration of war; a circumstance which she plainly studied to avoid, by her stipulating no aid in favor of the United States, but on the event of a war between herself and Great Britain. In actual war France could answer for the event.
Spain We cannot pursuade ourselves that any opposition will be made to the claims of the United States on the part of Spain. We do not deny that she has subdued some small posts within these vacant lands; but when it is remembered, that the United States have unfolded a title, which is substantial against the King of Great Britain, that the conquests of Spain are small in themselves and diminutive indeed when compared with those of the United States, her pretensions will vanish.
There are other objects that will undoubtedly occur in the course of negotiation.
The confiscation of the property of those who preferred an adherence to the old empire rather than to follow the fortunes of the new, was founded on those principles which have been discussed. The confiscation of the property of those who have committed treason against the United States, and are since become British subjects, has a foundation in the institutes of
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forfeiture in the British criminal code. Should restitution be urged in either of these cases, in defiance of the support which the measures of America derive from similar practices in England, it will be proper to represent the impossibility of making specifick restitution of the personal property; the various transfers which the real has undergone from individual to individual, the great value of which the citizens of these states have, contrary to the laws of war, been despoiled by the enemy; the still greater losses which they have sustained from their wanton havock; the burdens which the war will leave behind it; and the share which the claimants have borne in this spoliation and havock, and by the former of which they have enriched themselves far beyond their losses.
Of absentees from their country there are three classes. 1. Those who left it before the Declaration of Independence. 2. Those who left it after having become citizens. And 3. Those who were expelled.--It must be readily seen how dishonourable and troublesome a stipulation for their return would be to the governments which they have deserted; how obnoxious the persons answering to this description would be to the people at large, and especially such as have suffered from their outrages; and how much the more this stipulation is to be dreaded, as none but those who are totally devoid of both honour and sensibility would avail themselves of a privilege, which would expose them to the indignation and resentments which they had provoked. Nor is it unworthy the circumspection of his Most Christian Majesty to reflect, whether the restoration of those persons may not produce an unequal competition with his subjects in trade; many among them, besides the advantage which they possess from the knowledge of our language, having accurately informed themselves of the nature of our commerce from actual experience.
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It is not improbable that the subject of commerce will, among others, be introduced into the negotiation. The United States being, as a free and sovereign nation, the absolute masters as well of their commerce, as of their government, no claim of right can, or probably will be pretended with respect to the former by those, who relinquish such pretension with respect to the latter; but it is the wish and policy of the United States to preserved their commerce unfettered by stipulations in favor of nations, with which they are now unconnected, and particularly of that with which they are now at war. This policy cannot but coincide with the sentiments of his Most Christian Majesty, since by these means alone will be left to his allies the future opportunity of manifesting their preference of his interests to those of his enemies and rivals. Congress do for these reasons earnestly desire and expect that his Majesty will spare no efforts which may be necessary to exclude from a Treaty of peace every article which would restrain the United States from imposing on the Trade of Great Britain any duties, restrictions or prohibitions which may hereafter be judged expedient, unless it be so far only a relaxation in this point may be essentially necessary for obtaining peace, or the several objects above mentioned.
In this review of our former instructions we have drawn arguments from different sources. trusting to your discretion and judgment for the selection of such as are apt and seasonable and for the addition of any others of importance.
Done &c.
Resolved, That nothing in the preceding instructions contained be construed to affect any dispute which now does, or hereafter may subsist between individual States or between the Unites States and an individual State concerning territory.1
[Note 1: 1 This report, in the writing of Edmund Randolph, is in the Papers of the Continental Congress, No. 20, 1, folio 91--139. The words in brackets are in the report but not in the Journal. The following paper accompanied the report:
References to papers proper to explain the report most of which ought to be transmitted to our ministers.]
- a. Anderson's history of commerce 2 vol. 17 appendix.
- b. Spotiswood's history of Scotland 483 and 2 Ander: app. 17.
- c. Treaty of Paris 1763.
- d. Treaties here enumerated in the Report.
- e. Rymer's foedera 16th Tom p. 425.
- f. Treaty of Utrecht 1713.
- g. Grant to the Council of Plymouth 18 Nov. 1620.
- h. Commission to B. Wentworth Esq. governor of New Hampshire 13th July, 15 Geo. 2.
- i. Charter to Massachusetts 7 October, 1691, and the old charter of the 4th of March, 1628, 9.
- j. Charter to Connecticut April 23, 1662.
- k. Charter to Rhode Island 8 July 1662.
- l. Grant to the Duke of York 1663--4; capitulation of Dutch in the same year; Treaty of Westminster 1674; confirmation of the Duke's grant in the same year; treaties with the five nations in 1684, 1701, 1716, 1744, 1754 and the state of claims made by New York in print.
- m. Grant to New Jersey 23 June 1664, and the act of surrender 14th August 1703.
- n. Charter to William Penn 4th March 1681.
- o. Grants to William Penn by the Duke of York 24 Aug. 1683.
- p. Grant to Lord Baltimore by Charles the first 20 June 1632.
- q. Charter to the Treasurer and company of Virginia 23 May 1609 and another Charter to the Colony 10 Oct. 1676.
- r. Charters to Clarendon et al. 1662 and 1664. Statute 2. Geo. 2 c. 34. The act of division. This cannot be found.
- s. Grant to Georgia in 1732 and the proclamation of 1763.
- t. Grant of Nova Scotia to Sir William Alexander 10 Sept. 1621.
- u. Second grant to Alexander 12 July 1625.
- v. Memorial of the English to the French Commissioners 11 January 1751 concerning Nova Scotia.
- w. Popple's map. Champlain's.
- x. English Commissaries' reply 4th Oct. 1751.
- y. Ibidem.
- z. Act of the Board of trade and plantations 29th April 1700.
- aa. Grant to Duke of York for Sagadadock 12 March 1663--4.
- bb. Treaties of Germain, Westminster and Breda mentioned in the Report, and the memorials which are also referred to in the Report.
- cc. The act assigning Lord Cartaret's share in 1740.
- dd. Charter to Virginia 10 April, 1606.
- ee. Charter to Virginia 12 March 1611--12.
- ff. Lawson's history of Carolina p. 256.
- gg. Instruction to Mr Gooch in 1748--9 and the letter accompanying it.
- hh. Act of the Virginia assembly in 1753 as to settlers on the Mississippi.
- ii. Act to the same purpose in 1754.
- kk. Order for lands at the fork of Ohio and Mississippi in
- ll. Dinwiddie's proclamation in 1754.
- mm. Estimate of monies expended by Virginia for the western country.
- nn. Duke de Mirepoix's memorial to London 14 May 1755.
- oo. The Documents of New York.
- pp. Bowen's map of North America.
- qq. Treaty of Aix la Chapelle.
- rr. Treaty of Fort Stanwix in 1768.
- ss. Mr. Gerard's memorial 22nd May, 1779.
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The report being under debate for referring the foregoing facts and observations to the secretary for foreign
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affairs, to be by him digested, completed and transmitted to the ministers plenipotentiary of the United States for negotiating a treaty of peace--
A motion was made by Mr. [John] Rutledge, seconded by Mr. [Hugh] Williamson, to postpone the consideration of the report to make way for a motion, which he read in his place by way of argument.
On the question for postponing, the yeas and nays were required by Mr. [Edward] Telfair,
{table}
So the question was lost.
A motion was made by Mr. [John] Witherspoon, seconded by Mr. [Joseph] Montgomery, "that the report be committed:"
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And on the question for commitment, the yeas and nays being required by Mr. [Theodorick] Bland,
{table}
So it was resolved in the affirmative.1
[Note 1: 1 The report in regard to fisheries was entered only in the manuscript Secret Journal, Foreign Affairs. Mr. Rutledge's motion to postpone its consideration, Mr. Witherspoon's motion to commit it, and the votes upon those motions, were entered in both Public and Secret Journals. Committee Book No. 186 shows that on August 5 Mr. [James] Duane, Mr. [Hugh] Williamson, Mr. [Samuel] Osgood and Mr. [James] Madison were "added to Mr. Montgomery" on this committee "vice Carroll and Randolph," and that on August 20 the report was recommitted to Mr. [John] Rutledge, Mr. [James] Duane, Mr. [John] Witherspoon, Mr. [David] Howell and Mr. [Joseph] Montgomery.]
On the report of a committee, consisting of Mr. [Joseph] Montgomery, Mr. [Ezekiel] Cornell and Mr. [Theodorick] Bland, to whom was referred a letter of 12 from the Secretary
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at War, covering the extract of a letter from the Commander in Chief:
The Committee to whom was referred a letter from the Secretary at War covering the extract of a letter from his Excellency the Commander in Chief and copies of two letters from Col. Willet, Beg leave to report, That from the Representation made by his Excellency General Washington of the nature of the services performed by the levies raised by the State of New York, it appears that they are nearly equal to those they would render were they incorporated with the standing Regiments of that State, and submit to the consideration of Congress the following Resolve:
Resolved, That the Secretary at War be, and he is hereby, directed to issue cloathing, from time to time, in like proportion as to the continental troops, to the two regiments of infantry raised by the State of New York, under the resolution of Congress of the 2d of April, 1781, though the continental regiments of that State are not quite completed to the establishment.
Your Committee beg leave farther to report--
That they are fully in opinion that humanity, justice, policy and even economy unitedly invite an attention to the tribes of Indians which are retained in our interest: and that the most speedy and effectual measures should be adopted for clothing them according to their own manner and customs--
The following Resolve is submitted to the consideration of Congress:
Resolved, That the commissioners of Indian affairs in the northern department be requested to report to Congress as soon as may be, the articles necessary to cloathe the Indians in our interests, so as to make them useful, and to appear with respect among the other tribes.1
[Note 1: 1 This report, in the writing of a clerk, is in the Papers of the Continental Congress, No. 27, folio 179. The Secretary at War's letter is in No. 149, I, folio 575.]
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