II. Arguments by James Wilson and William Samuel Johnson before the Court of Commissioners
[14–23 Dec. 1782]
We have the pleasure to meet your honors upon a very important Contest. You are now to decide a territorial controversy, which with other nations would have been decided by the sword. This being a court of the first impression in any part of the Globe and the present subject of litigation being of considerable value, I hope the honorable Court will pardon the tedious discussion I am now to make.
On the part of Pennsylvania I will lay down this first position.
1. “That N. America being discovered by Gabot1 in 1594, the Crown of England assumed the Right of Granting the property and Jurisdiction thereof to its subjects by letters patent.”
I apprehend this position is so evident from the General tenor of history that no contradiction will arise concerning it. However proofs to this purpose may be exhibited in the examination of a second position which I am now to make.
2. “That in 1681 the Crown of England justly considered all the lands in America westward of Delaware River and Northward of lord Baltimore’s Grant, as ungranted lands and open to a new Grant.”
A Right of discovery is common to all nations. The English had not a preference.
A Tittle from discovery was certainly of some force and especially according to the Ideas which prevailed in those early times. In consequence of this we find a Grant from the Pope Alexander the 6th. to his Catholic Majesty in the Year 1493.
2 Harris voyages. 15. 16. 17.
Also a Grant by Henry 7th. of England to the Cabots
2 Harris. 190.
Also a Grant to Monsr. d’ Ossions
4 purchas pilgrim. 1609. 1620.
King James the first divided America into two Colonies, South and North Virginia.
The first charters could only extend 100 miles upon the coast and the same distance into the Country.
1 Neal history. 17. Stiths history of Virginia. 10
In 1608 Henry Hudson in the service of Holland penetrated so high up the hudson’s river as Albany about 43°. N. L.
Smiths history N. York. 2. 3. 4.
Smith’s history N. Jersey. 19.
The dutch settlements in North America were called Nova Belgia or New Netherlands.
The extent of them
Hielans1 Cosmography 957.
2 british Empire in America 237.
2 Harris 280. 5 atlas Geog. 732.
Ogil. America 168.
The dutch possessions acknowleged as just by England at the Treaty of Breda 1667. and the Treaty of Westminster 1673. From these authorities we have a right to conclude that Nova Belgia or N. Netherlands covered all that Territory at least which is now in dispute.
The Great plymouth patent constituting N. England from 40°. to 48°. N. L. passed in 1620.
This patent we contend could pass no Territory westward of N. Netherlands. It was bounded or estopped by the possessions of the first christian prince.
1 Douglas history N. England 114.
2 Douglas 391.
Lord Hardwick’s opinion in 1 Vezey 451.
The Geography of the Country on this period but little understood and therefore unreasonable and extravagant that Grants should extend to the south seas.
3 Purchas 852. 853.
4 Purchas 1786. Virginia valued—pamphlet
The surrender of this Great patent was in the year 1635.
The Charter to Connecticut was Given in the Year 1662.
New Haven colony united with the Colony of Connecticut 1665.
That charter meant only to cover the two Colonies and could never mean to extend westward of the Dutch settlements. All Geographers and writers have proceeded upon this Idea—Douglas, Hutchinson, Neal, modern un. history, british Emp. &c. &c.
The Title set up by Connecticut ought to be considered as a dormant title. Nothing is mentioned of this western Territory from the year 1662 to the year 1754 and not regarded by Government untill 1773.
The line drawn by the King’s commissioners in 1664 and assented to by Connecticut as a good issue, decisive as to the western bounds of that Colony.
New York Records. 20.
Connecticut Records. 30.
In 1680 and 1730 Connecticut acknowleges herself bounded west by the province of N. York.
Considerations ought to be commensurate with every Grant.
The King was deceived in this Grant to Connecticut as no exception was made to the Dutch possessions.
We must discover the thoughts of those who make Contracts
2 Blacstone 295.
2 Vattel §270.
2 Hutchinson history Massa. 387.
Interpretation must be rational
2 Rutherford—chapter Interpretation.
1 Blacstone 59.
2 Bacon abrid. 661.
The power of explaining charters, &c. must remain with the Crown.
2 Vattel §282. 287.
Restraining the words of laws, patents &c.
2 Vattel 292. 293.
2 Rutherford. 339.
Puffen. 545. 554.
3. I state as a 3d. position
“That King Charles the second granted to William Penn his heirs and assigns all that Tract of land in America bounded by Delaware River on the East unto the 43°. of N. latitude, the said land to extend westward five degrees in longitude &c.”
This position is proved by the charter of Pennsylvania dated 4 March 1681.
4. A fourth position is
“That this charter was considered by the King with attention and caution and was granted in consideration of debts due from the Crown, and also in consideration of the services of Sir William Penn the father of the Grantee.”
Passed with great caution.
Proceedings of the privy council in
1 Votes assembly 7. 12.
The Grant not extravagant.
2 Douglas 306.
The Grant was for debts and services
2 Harris. 293.
9 Biographical dict. article Penn.
Such Grants of the King ought to be construed favorably
4 Bac. ab. 212.
5. A fifth position
“That, to prevent any claim which the duke of York might have upon Pennsylvania, William Penn obtained a release from the duke of all such his right, title, and Interest.”
This deed of release bears date 21 of August 1682.
2 Douglas 305.
This right, title, or Interest, vested in the duke.
The dutch had the right of pre-emption as possessing N. Netherlands. N. Netherlands was cede[d] to England and afterwards granted to the duke.
Colden’s history five nations 52. 53. 54. 104.
This makes the foundation of the cession made by the state of N. York to the united stats.
6. We state as a sixth position
“That upon the faith of this Grant to Penn Great numbers came from Europe to Pennsylvania, extended the settlements already began, and together with the Proprietor exercised Jurisdiction over all the lands within the bounds of the said patent untill the revolution in 1776.”
Many laws of Pennsylvania, the Council Books of Pennsylvania, and Colden’s history, page 115. 131. were adduced in proof of this position.
Also a proclamation of the Pennsylvania Government dated 24th. of February 1768. and another dated 10 July 1771.
7. A seventh position is this
“That Penn not content with the Title which the patent gave him to the soil, he and his successors purchased the lands from the Natives for a valuable consideration.”
The Indian Right to dispose of their lands. Colden. 106.
Also in page 77. 78. 79.
Dummer’s defence. 18. 1 Douglas. 5.
Indian deeds and papers exhibited from No. 2 to No. 41.
Treaty of Albany 1754.
Pennsylvania does not mean to abandon her Crown title by these exhibits. But she means to strengthen her right to the lands in controversy by combining her Indian title.
8. We advance as the eighth position
“That the Indians of the six Nations in a public and solemn manner conveyed the Right of pre-emption to the proprietors, and covenanted to sell all the lands within the limits of the charter of Pennsylvania to none but to them, their heirs and assigns.”
This deed of pre-emption dated 25th of October 1736.
Colden history five nations.
9. “That at a subsequent period a second deed of the same kind was made in the same manner and the former deed recognised.”
Deeds of ratification and confirmation in the years 1754. 1758.
Also the great deed at Fort stanwix in the year 1768.
10. “That actual settlements were made by the Inhabitants of Pennsylvania and under rights derived from the proprietors, on the lands in dispute, for more than 20 years, before any claims or settlements on these lands were made by any persons under Connecticut.”
To prove this position several exhibits were adduced from letter A to letter G. and also parole testimony.
Position the last.
11. “That by an act of the General assembly, Pennsylvania being a free, sovereign, and Independant state, all the Estate, title, and Interest, of the then proprietors is vested in the Common wealth of Pennsylvania, in consideration whereof the sum of £130,000 sterling money is granted to the said proprietors.”
The act in proof of this position is dated 27th. of November in the year 1779.
Not just to extend these south sea claims—these unlocated lands ought to be in common as being acquired by the common blood and common Treasury of America.
J[ohnson]—on the part of Connecticut
I shall state this as my first position.
1. “That by the discovery of the Cabots the Crown of England was vested with a right of colonising from the 25 to the 68°. of N.1. in America, and with the right, property, and pre-emption, to all the lands from sea to sea.”
Prince’s chronology. 17. 80.
Stiths history of Virginia Appendix 1. 2. 3.
General history and writers upon this subject.
2. A second position I lay down is
“That 1606 King James the first divided the Countries aforesaid into two Colonies South and North Virginia.”
Stiths history of Virginia
3. My third position
“That King James the first granted to the Council of Plymouth all the Colony of North Virginia from the 40 to the 48° of N.l. in longitude from the Atlantic on the East to the south sea on the west the whole breadth throughout the main land, and gave it the name of N. England, except only such parts as were actually in the possession of some other christian prince.”
Plymouth patent dated 18th. November 1620.
4. My fourth position
“That many subordinant Grants were made by the Council of Plymouth, particularly one to the proprietors of the province of Massachusets Bay, confirmed by King Charles the first in 1629.”
Charter prefixed to the laws of Massachusets.
3 Hutchinson, from the beginning.
“That Robert Earl of Warwick president of the Council of Plymouth conveyed to lord Say and Seal and others all that part of N. England in America from Narraganset river the space of 40 leagues upon the sea shore, and also all the lands north and south in latitude and breadth, and in length and longitude of and within all the breadth aforesaid, throught the main lands there, from the western ocean to the South Sea.”
Patent to Say and Seal dated 19 March 1631.
2 Douglas 90. 160.
2 Hutchinson. 203.
Connecticut records. 57.
“That in 1636 the Colony of Connecticut settled on the said lands as the associates of Lord Say and Seal &c. and in 1638 formed a constitution of Government extending themselves by purchases from the Indians to the possessions of the Dutch on Hudson’s river.”
Connecticut records. 41.
New-Haven records. 1. 2. 3.
United Colony records. 19. 20. 39.
“That King Charles the 2d. granted the present charter to the Governor and Company of Connecticut. The bounds are All that part of my dominions in New-England bounded East on Narraganset river, on the North by the line of the Massachusetts, and on the south by the sea; and in longitude as the line of the Massachusetts runing from East to West, that is from the said Narraganset on the East to the south sea on the west part.”
Petition of the Connecticut assembly to Charles 2d. June 7th. 1661.
Charter 23 of April 1662.
Letter from Charles 2d. to the Governor and Company of Connecticut 23 of April 1664.
“That Charles 2d. gave a patent to his Brother the Duke of York of all that part of New-England from Saint Croise next adjoining to New Scotland, from thence on the sea coast to Pemaquid and up that river to its head as it tendeth northward, and extending from thence to the river Kenebeck and upwards by the shortest course to the river Canada Northward, also Long Island with the Hudsons river, and all the lands from the west side of Connecticut river to the East side of Delaware Bay.”
This patent, dated 12th. of March 1664.
“That the Crown of England having granted all the lands from 40°. to 48 N.l. to the Plymouth Company, excepting as is therein excepted, the duke of York’s patent took effect by force of the exception and in the settlement of the line with Connecticut the duke’s patent was reduced nearly to the dutch possessions on the Hudson’s river Eastward.”
Connecticut records. 137.
Articles of agreement 29th. of April 1725.
Act of the Connecticut assembly October 4th. 1730.
“That in 1753 the Colony of Connecticut having settled all the lands in the patent east of the line settled with the duke of York—Companies of Adventurers were formed for the purpose of making settlements within the charter on the west of delaware river agreeable to the original Intent thereof and purchased of the Indians sundry Tracts of land on the Delaware and Susqueh. rivers, and made settlements on the lands in controversy, under the colony of Connecticut, approved by the assembly.”
Indian deed 11 July 1754.
Indian deed 29th of october 1756.
Indian recognition. 12th July 1763.
“That in 1773 the Colony of Connecticut did assert their right of Jurisdiction and property and pre-emption in and to the lands in question, and for many years past have actually exercised Jurisdiction over the same.”
Act of assembly October 1773.
Act of assembly January 1774.
Act of assembly December 1775.
12. Position—and the last.
“That the Colony of Connecticut at the time of the late Revolution was in fact seised of the right of Jurisdiction of property and preemption in and to all the Territory in their charter and patent including the lands in controversy.”
This question upon the whole matter is a very important question and to my Judgment ought to be determined by the law which existed at the moment of acquisition.
This law had for its basis the great principle or title of occupancy and the acknowleged Right of the Prince.
But America was inhabited. Therefore some additional principles were necessary and what were these additional principles? Preemption, and actual purchase.
But no such purchases could be made unless they were made under the authority of the Prince, agreeable to the feudal Ideas prevalent at that period.
Hence it followed that the Indian Tittle was subordinate to the Crown Title.
The Indian Title can give no certainty and certainty is necessary in the establishment of property.
We ought to consider the Natives of America as they were.
Cultivation or Industry appears to me the only just criterion of property.
Nay property ought to be commensurate with Civilization.
We made actual purchases of the Indians but why? That we might purchase peace and quiet.
All titles in America take their origin from the Crown in the way of Charters and other Grants.
The Crown only could give a right of pre-emption, and that right of pre-emption seems to be admitted by the laws of Nations, consented to by all civilized people and sanctified by prescription.
All the legislatures upon this continent have adopted a language of this sort and therefore ought to be binding upon this court as a fixed determination or law in the American code.
Connecticut had a charter given them in the year 1662 upon valuable considerations.
Charters or Grants are the foundation of all American property and charters or Grants once fairly made should operate eternally.
Connecticut has a legal Title as founded upon discovery and subsequent Grant from Charles the second.
Discovery is a right acquiesced in nay ratified by all the nations of Europe and therefore in a national controversy like the present will carry weight with it.
We have no direct proof that the Dutch were in possession of N. Netherlands or any part of N. England under a title from their sovereign, untill the year 1621, a year after the Plymouth patent was granted by King James.
Before the year 1620 Governor Argal of Virginia made the Dutch acknowlege the King of England and therefore became Tenants to the Crown of England.
We can consider the Dutch therefore as originally nothing better than Intruders.
Then the settlements of the Dutch cannot form a bar or an estoppel to the western extension of the Connecticut charter.
It does not appear that King Charles was deceived in his Grant to Connecticut. He well knew the extent of that Grant. The Atlantic and Pacific oceans even upon the coasts of them had been explored—latitudes and longitudes pretty accurately determined.
All these Grants or charters extending to the South Sea were done so for the purpose of encouragement. They formed a regular system.
At all events, the Instrument itself must determine the Grant.
Every Instrument of this nature should be construed liberally and not so strictly as to contradict or take away the essential words of it. If the property of these lands in dispute were once vested, as we think by the charter of Charles, there is nothing in our opinion to divest it.
The reasons, evidence, or documents to the divestiture of property ought to be fully as strong as to the Investiture.
The settlement of 1664 was only a settlement with the duke of York. In fair construction it can relate to nothing farther than to adjust the bounds of the Dukes patent and the patent of Connecticut as relative to the Duke.
If that settlement meant any thing more than I contend it could be only upon the principle of resumption by the Crown—the most horrid principle of Tyrannical power—against all Law whatever, and what I am certain this Court will never establish in these enlightened times.
In this case the Title of Connecticut cannot be considered as a dormant title. Silence does not operate against property in the society of nations. Neither in law or Equity can nonuses forfeit the right in our situation. Neither Penn or Connecticut made any use of this controverted Territory untill lately. Connecticut took possession and made settlements so soon as her Eastern Territory was populated.
The acknowlegement of Connecticut as bounded west in 1680 and 1730 must be construed according to the subject matter. The subject matter was the bounds of the Province of N. York and the bounds of Connecticut as interfering with that province and can-not preclude the western extension of Connecticut beyond the province of N. York.
Besides if there was a dereliction or even such an acknowlegement on the part of Connecticut it cannot operate in favor of the Pennsylvania charter, that being granted to Penn only 19 years after the one to Connecticut.
The policy of this great Question has been mentioned. I think improperly. It was meant as an appeal to a majority of this honorable Court who come from the smaller states in the union. But your honors will disregard the policy of this matter if it militates with the right.
However the policy will be found in favor of Connecticut—for at the approaching peace with G. Britain our charters will be the best foundation to stand upon in discussing the subject of the back Territory. We are not entitled to those fine and extensive regions by Conquest from Britain nor are we entitled to them by forfeiture on the part of Britain. Our charters or Grants from the Kings of England make the only firm basis of American claim to those back lands.
MS (DLC: TJ Papers); entirely in the hand of Cyrus Griffin. There is no date on the MS, but Wilson’s arguments were presented on 14, 19 and 20 Dec. 1782 and those of Johnson on 21 and 23 Dec. 1782 (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxiv, 29–30). As suggested in the editorial note, Griffin may have placed this MS in TJ’s hand in Philadelphia in Jan. 1783.
The policy of this great question has been mentioned: Johnson is here replying—and with telling force—to an argument that apparently had been advanced by Wilson on 13 Dec. 1782 in which he undertook to “suggest the Advantages or inconv[eniencie]s that are likely to flow from the Decision of this Court” (Penna. Archives, 2d ser., xviii, 622). He may also be referring to the argument that Wilson and other land speculators had advanced in Congress and he repeated here—that “these unlocated lands ought to be in common as being acquired by the common blood and common Treasury of America” (“The Creation of the National Domain,” by Merrill Jensen, MVHR description begins Mississippi Valley Historical Review, 1914–64 description ends , xxvi , 323–42). But there is no doubt of the accuracy of Johnson’s observations that at the approaching peace negotiations the sea-to-sea charter claims of the colonies would be one of the main supports of the American contention, and instructions had already been given to that end to the American ministers abroad (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxiii, 490–516). Nevertheless, policy was doubtless the determining influence in the decision.
1. Thus in MS. This and other similar errors in MS would seem to indicate that Griffin took down his notes from oral presentation by counsel.